Jinadasa v. Schlag et al

Filing 51

ORDER GRANTING MOTION TO DISMISS AND DENYING MOTION TO STRIKE re 38 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 5/27/2015. "Jinadasa's claims, except for his Title VII claims against the individual Defendants, are dismissed without prejudice. No later than June 22, 2015, Jinadasa may file a Third Amended Complaint addressing the deficiencies noted in the present order. Jinadasa's Title VII claims against the individual Defendants may not be include d in his Third Amended Complaint." "If Jinadasa fails to file a Third Amended Complaint by June 22, 2015, the court may automatically dismiss this action." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Jinendra Jinadasa served by first class mail at the address of record on May 27, 2015.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JINENDRA JINADASA,

)
)
Plaintiff,
)
)
vs.
)
)
BRIGHAM YOUNG UNIVERSITY)
HAWAII, et al.,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 14-00441 SOM/BMK
ORDER GRANTING MOTION TO
DISMISS AND DENYING MOTION TO
STRIKE

ORDER GRANTING MOTION TO DISMISS
AND DENYING MOTION TO STRIKE
I.

INTRODUCTION.
Defendants Brigham Young University-Hawaii (“BYU

Hawaii”), Kevin Schlag, Tessie Faustino, Steven C. Wheelwright,
and Max L. Checketts (collectively, “Defendants”) move to dismiss
Plaintiff Jinendra Jinadasa’s Second Amended Complaint for
failure to state a claim upon which relief can be granted.
Defendants also move to strike certain allegations in the Second
Amended Complaint.

The motion to dismiss is granted and the

motion to strike is denied as moot.
II.

FACTUAL BACKGROUND.
Jinadasa, who is proceeding pro se, is a Web Architect

at BYU Hawaii.

See ECF No. 29, PageID # 106.

Jinadasa alleges

that he is the only black administrative staff member at BYU
Hawaii.

See id. at PageID # 108.
In his Second Amended Complaint, filed on January 27,

2015, Jinadasa asserts an intentional infliction of emotional

distress claim and disparate treatment and retaliation claims
under Title VII against BYU Hawaii and four individual BYU Hawaii
employees.

See id. at PageID #s 107-08.
Jinadasa alleges that he was subjected to disparate

treatment in violation of Title VII by being denied: (1) equal
compensation; (2) advancement opportunities; (3) employee awards;
(4) “proper access to web server and tools”; and (4) the
opportunity to attend conferences on the U.S. mainland.
at PageID # 108.

See id.

Jinadasa also alleges that Defendants

“exclud[ed] [him] from key decision making meetings and technical
procedures that affected [his] job responsibilities,” failed to
“invit[e] [him] to office parties,” and failed to “respond[] to
[his] technical requests and communications.”

Id. at PageID #s

108-09.
Jinadasa further alleges that he was retaliated
against for filing a charge with the Equal Employment Opportunity
Commission (“EEOC”) by being: (1) banned from the BYU Hawaii
campus; (2) barred from attending a worship service; (3) barred
from attending a family wedding on the BYU Hawaii campus; and (4)
singled out for violation of BYU Hawaii policy while more severe
violations by others were ignored.

See id. at PageID # 108.

Defendants move to dismiss the Second Amended Complaint
under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
ECF No. 38.

Defendants also request that the court strike

2

See

certain portions of the Second Amended Complaint that they allege
are “immaterial and inflammatory.”

See ECF No. 38-1, PageID #s

315-16.
III.

STANDARD.
Under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, the court’s review is generally limited to the
contents of the complaint.

Sprewell v. Golden State Warriors,

266 F.3d 979, 988 (9th Cir. 2001); Campanelli v. Bockrath, 100
F.3d 1476, 1479 (9th Cir. 1996).

If matters outside the

pleadings are considered, the Rule 12(b)(6) motion is treated as
one for summary judgment.

See Keams v. Tempe Tech. Inst., Inc.,

110 F.3d 44, 46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d
932, 934 (9th Cir. 1996).
On a Rule 12(b)(6) motion to dismiss, all allegations
of material fact are taken as true and construed in the light
most favorable to the nonmoving party.

Fed’n of African Am.

Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.
1996).

However, conclusory allegations of law, unwarranted

deductions of fact, and unreasonable inferences are insufficient
to defeat a motion to dismiss.

Sprewell, 266 F.3d at 988; Syntex

Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).
Dismissal under Rule 12(b)(6) may be based on either:
(1) lack of a cognizable legal theory, or (2) insufficient facts
under a cognizable legal theory.

Balistreri v. Pacifica Police

3

Dept., 901 F.2d 696, 699 (9th Cir. 1988) (citing Robertson v.
Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.
1984)).
“[T]o survive a Rule 12(b)(6) motion to dismiss,
factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true even if doubtful in fact.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks omitted); accord Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation”).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do.”

Twombly, 550 U.S. at 555.

The complaint must “state a

claim to relief that is plausible on its face.”

Id. at 570.

“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.”
556 U.S. at 678.

4

Iqbal,

IV.

ANALYSIS.
A.

Claims Against Individual Defendants Are Not
Cognizable Under Title VII.

Jinadasa asserts claims under Title VII against Kevin
Schlag, Tessie Faustino, Steven C. Wheelwright, and Max L.
Checketts in their individual capacities.

In his opposition to

Defendants’ motion to dismiss, Jinadasa says that he named those
Defendants in their individual capacities out of concern that
“the defendants would be leaving the university and that the
university will deny all wrongdoings and blame it on the
individual defendants after they have left.”

ECF No. 44, PageID

# 329.
That concern does not overcome the bar on claims
against individuals under Title VII.

See, e.g., Miller v.

Maxwell’s Int’l Inc., 991 F.2d 583, 587 (9th Cir. 1993)
(individual employees are not subject to liability under Title
VII); Mukaida v. Hawaii, 159 F. Supp. 2d 1211, 1216 (D. Haw.
2001) (same).

Title VII provides for claims against certain

employers, not against other employees, even if the other
employees are supervisors.

Jinadasa cannot state claims against

the individual Defendants under Title VII.
B.

Jinadasa Fails to State a Claim Against BYU Hawaii
for Disparate Treatment Under Title VII.

Jinadasa appears to allege that BYU Hawaii
discriminated against him in the terms and conditions of his
5

employment in violation of Title VII (42 U.S.C. § 2000e).
ECF No. 29, PageID # 108.

See

His allegations are not entirely

clear, but he may be alleging discrimination on the basis of his
race or national origin, as he describes himself as “the only
black administrative staff at the university,” which he says
“favo[]rs caucasians” and has a “predominantly white
administration.”1

Id. at PageID # 107.

He also refers to “a

direct violation of Title VII protecting the plaintiff due to his
national origin.”

Id. at PageID # 108.

Jinadasa fails, however,

to state a plausible disparate treatment claim.
To establish a violation of Title VII, a plaintiff may
offer direct evidence of discrimination.
307 F.3d 1092, 1112 (9th Cir. 2002).

See Lyons v. England,

Direct evidence is

“evidence which, if believed, proves the fact of discriminatory
animus without inference or presumption.”

Coghlan v. Am.

Seafoods Co. LLC., 413 F.3d 1090, 1095 (9th Cir. 2005) (internal
quotation marks and brackets omitted).

The Second Amended

Complaint does not include factual allegations relating to direct
evidence of discrimination.
In the absence of direct evidence of discrimination,

1

The Second Amended Complaint alleges that an EEOC
investigation found “strong evidence of gender discrimination in
pay.” ECF No. 29, PageID # 107. However, Jinadasa does not
actually allege that he himself suffered sex discrimination, and
“sex” was not checked on his EEOC charge as a form of
discrimination he was administratively complaining about. See
ECF No. 38-3, PageID #s 320-23.
6

discrimination claims under Title VII are analyzed under the
burden-shifting framework established in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973).

See Cornwell v.

Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006)
(McDonnell Douglas framework applies to Title VII claims).
Under McDonnell Douglas, a plaintiff establishes a
prima facie case of discrimination by offering proof: (1) that
the plaintiff belongs to a class of protected persons; (2) that
the plaintiff was qualified for his or her position and performed
his or her job satisfactorily; (3) that the plaintiff suffered an
adverse employment action; and (4) that the plaintiff’s employer
treated the plaintiff differently from a similarly situated
employee who does not belong to the same protected class as the
plaintiff.

See id.; Hodges v. CGI Fed. Def. & Intelligence, Civ.

No. 12-00420 LEK-BMK, 2014 WL 5528228, at *3 (D. Haw. Oct. 31,
2014).
In assessing the sufficiency of Jinadasa’s disparate
treatment claim under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, this court is cognizant that, in Swierkiewicz v.
Sorema N. A., 534 U.S. 506, 510 (2002), the Supreme Court noted,
“The prima facie case . . . is an evidentiary standard, not a
pleading requirement.”

While Jinadasa is not, for the purposes

of Defendants’ motion to dismiss, strictly bound by the elements
of a prima facie case, those elements are a useful tool in

7

assessing whether Jinadasa meets the requirement in Rule 8(a) of
the Federal Rules of Civil Procedure that a complaint contain “a
short and plain statement of the claim showing that the pleader
is entitled to relief.” (Emphasis added).
A pleader is only entitled to proceed if he or she
states a plausible claim, and a claim can be so meagerly asserted
as to be rendered implausible.

See Fresquez v. Cnty. of

Stanislaus, No. 1:13-cv 1897-AWI-SAB, 2014 WL 1922560, at *2
(E.D. Cal. May 14, 2014) (“[W]hile a plaintiff need not plead
facts constitut[ing] all elements of a prima facie employment
discrimination case in order to survive a motion to dismiss,
courts look to those elements to analyze a motion to dismiss –so as to decide, in light of judicial experience and common
sense, whether the challenged complaint contains sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.”); Lindsey v. Claremont Middle Sch.,
No. C 12-02639 LB, 2012 WL 5988548, at *2 n. 3 (N.D. Cal. Nov.
29, 2012) (“[E]ven though [plaintiff] does not need to establish
prima facie cases for his or her claims at this point, the court
will look to the required elements to determine whether the facts
that are alleged state plausible claims for relief.”).

At some

point, a claim may be so lacking in specificity and information
that a claimant’s entitlement to relief is reduced to being
speculative.

See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at

8

555.

Such is the case here.
Jinadasa appears to allege that BYU Hawaii subjected

him to adverse employment actions by denying him: (1) equal
compensation; (2)“advancement opportunities”; (3) “employee
awards”; (4)“proper access to web server and tools”; and (5) the
opportunity to attend conferences on the U.S. mainland.
No. 29, PageID # 108.

See ECF

Jinadasa also may be alleging that the

following actions were adverse employment actions for the
purposes of his disparate treatment claim: (1) exclusion from
meetings and “technical procedures”; (2) exclusion from office
parties; and (3) lack of response to “technical requests and
communications.”

Id. at PageID #s 108-09.

An adverse employment action in the context of a Title
VII disparate treatment claim “is one that materially affects the
compensation, terms, conditions, or privileges of . . .
employment.”

Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th

Cir. 2008) (internal quotation marks and brackets omitted).
Jinadasa’s allegations that he was denied employee
awards, denied proper access to a web server and unspecified
“tools,” excluded from office parties, and ignored in his
“technical requests and communications” do not provide a
sufficient basis for this court to infer that Jinadasa was
subject to an adverse employment action.

No allegations in the

Second Amended Complaint suggest that those actions caused “a

9

material employment disadvantage, such as a tangible change in
duties, working conditions or pay.”

Delacruz v. Tripler Army

Med., 507 F. Supp. 2d 1117, 1123 (D. Haw. 2007); see also
Kirkland v. Conn. Dep’t of Soc. Servs., No. 3:10 CV 2037 WWE,
2013 WL 4054628, at *5 (D. Conn. Aug. 12, 2013) (“Defendant’s
failure to ensure plaintiff’s participation in the holiday party
represents a petty slight or minor annoyance that cannot form the
basis of a Title VII claim.”); Nelsen v. McHugh, No.
CV-08-1424-ST, 2011 WL 3422869, at *18 (D. Or. Apr. 5, 2011)
(“[Plaintiff] alleges that she was not provided job recognition.
However, any such failure is not an adverse employment action
because it does not affect the terms and conditions of her
employment.”).

It is clear that “not every employment decision

amounts to an adverse employment action.”

Id. at 1124.

Jinadasa’s allegations that he was denied advancement
opportunities, denied the opportunity to attend conferences on
the mainland, and excluded from “key decision making meetings”
and “technical procedures that affected [his] job
responsibilities,” ECF No. 29, PageID # 108, may concern adverse
employment actions, but Jinadasa fails to provide sufficient
factual information regarding those alleged actions and their
effect on his compensation, terms, conditions, or privileges of
employment.

The conclusory assertion that an action had an

effect on “job responsibilities,” without more, is ordinarily

10

insufficient.

Jinadasa must provide this court with more factual

allegations going to the material effect of alleged actions to
state a plausible claim.
Jinadasa’s allegation that he was denied “equal
compensation,” if read liberally, appears to sufficiently allege
an adverse employment action.

An allegation that Jinadasa’s

compensation was unequal to the compensation of other similarly
situated employees reasonably leads this court to the inference
that Jinadasa’s compensation was materially affected.

See Davis,

520 F.3d at 1089 (an adverse employment action “is one that
materially affects the compensation, terms, conditions, or
privileges of . . . employment.” (internal quotation marks and
brackets omitted)).

However, even if Jinadasa’s allegation that

he was denied equal compensation is sufficient to plausibly
allege an adverse employment action, other deficiencies in the
pleading of Jinadasa’s disparate treatment claim require its
dismissal.
Jinadasa’s Second Amended Complaint does not allege
that BYU Hawaii treated him less favorably than a similarly
situated employee not belonging to the same protected class.
says that his “co-workers with lower experience, less time or

He

seniority at the institution, poor work performance, less
responsibilities, and less education were receiving
$10,000-$15,000 more” than he was in compensation, ECF No. 29,

11

PageID # 110, but this allegation does not go to whether Jinadasa
was discriminated against based on his race or his national
origin.
Nor does Jinadasa allege that he was qualified for his
position and performed his job satisfactorily.

While, as noted

above, Jinadasa is not strictly bound by the elements of a prima
facie case, his failure to allege this element is only one of
several weaknesses in his claim.
The court recognizes that Jinadasa’s opposition
memorandum may contain information relevant to some of the
deficiencies of the Second Amended Complaint noted in this order.
New factual allegations in Jinadasa’s opposition, however, may
not be considered in assessing the sufficiency of the Second
Amended Complaint.

See Schneider v. Cal. Dep’t of Corr., 151

F.3d 1194, 1197 (9th Cir. 1998) (“In determining the propriety of
a Rule 12(b)(6) dismissal, a court may not look beyond the
complaint to a plaintiff’s moving papers, such as a memorandum in
opposition to a defendant’s motion to dismiss.”); Moniz v. Am.
Home Mortgage Servicing, Inc., Civ. No. 11-00160 SOM/BMK, 2011 WL
2746805, at *3 (D. Haw. July 13, 2011) (allegations made for the
first time in an opposition memorandum may not be considered);
Balagso v. Aurora Loan Servs., LLC, Civ. No. 11-00029 SOM/BMK,
2011 WL 2133709, at *3 (D. Haw. May 26, 2011) (same).

Factual

allegations may only affect the sufficiency of Jinadasa’s claims

12

under Rule 12(b)(6) if contained within Jinadasa’s complaint.
Because Jinadasa fails to state a plausible claim for
disparate treatment under Title VII, that claim is dismissed.
C.

Jinadasa Fails to State a Claim for Retaliation
Under Title VII.

Jinadasa appears to allege that he was retaliated
against by BYU Hawaii in violation of Title VII after he filed a
charge with the EEOC.

See ECF No. 29, PageID # 108.

Jinadasa

says that he was (1) banned from the BYU Hawaii campus; (2)
barred from attending a worship service; (3) barred from
attending a family wedding on the BYU Hawaii campus; and (4)
singled out for violation of BYU Hawaii policy while more severe
violations by others were ignored.

See id.

A plaintiff establishes a prima facie case of
retaliation by showing that: (1) he engaged in a protected
activity; (2) he suffered an adverse employment action; and (3)
there was a causal connection between the two.

Surrell v. Cal.

Water Serv. Co., 518 F.3d 1097, 1108 (9th Cir. 2008).
This court disagrees with BYU Hawaii’s contention that
Jinadasa fails to allege that he engaged in a “protected
activity.”

Jinadasa says that he was retaliated against in

violation of Title VII because he “had filed with the EEOC.”
No. 29, PageID # 108.

While Jinadasa does not specify what he

ECF

filed with the EEOC, he is clearly referencing the filing of a
charge or complaint.

Such an action clearly constitutes a
13

“protected activity.”

See Raad v. Fairbanks N. Star Borough Sch.

Dist., 323 F.3d 1185, 1197 (9th Cir. 2003) (“Protected activity
includes the filing of a charge or a complaint, or providing
testimony regarding an employer’s alleged unlawful practices, as
well as engaging in other activity intended to oppose an
employer’s discriminatory practices.” (internal quotation marks
and brackets omitted)).
BYU Hawaii also argues that Jinadasa fails to allege
that he suffered an adverse employment action.

In support of

this assertion, Defendants rely on the same arguments made with
respect to Jinadasa’s alleged adverse employment actions in the
context of his disparate treatment claim.

But the definition of

an adverse employment action in the context of a retaliation
claim is broader than that applying to a disparate treatment
claim.

See Campbell v. Knife River Corp.--Nw., 783 F. Supp. 2d

1137, 1154 (D. Or. 2011).

For a retaliation claim, an adverse

employment action is an action that is “reasonably likely to
deter employees from engaging in protected activity.”

Vasquez v.

Cnty. of Los Angeles, 349 F.3d 634, 646 (9th Cir. 2003).

Given

that Defendants present no argument specific to an adverse
employment action in the retaliation context and given that
Jinadasa’s allegations of adverse employment actions are not
facially implausible, the court finds no deficiency in Jinadasa’s
pleading on that basis.

14

The court concludes, however, that Jinadasa fails to
plausibly allege a causal connection between his EEOC filings and
the alleged adverse employment actions.

Jinadasa says that the

two are connected, but offers no factual allegations in support
of that conclusory assertion.

He does not, for instance, even

provide an approximate time frame for the allegedly retaliatory
actions.

As a result, Jinadasa fails to state a claim for

retaliation under Title VII.

See Twombly, 550 U.S. at 555

(“While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do.”).
D.

Jinadasa Fails to State a Claim for Intentional
Infliction of Emotional Distress.

Jinadasa provides little detail in support of his
intentional infliction of emotional distress claim.

All Jinadasa

says is that the individual Defendants collaborated with Norman
Black, Jinadasa’s direct supervisor, to “inflict emotional
distress against the plaintiff and his family in an act of
retaliation.”

ECF No. 29, PageID #s 107-08.

Jinadasa’s

Complaint does not specify what acts he is claiming intentionally
inflicted emotional distress on him, leaving this court unable to
discern the factual bases of his claim.
15

Jinadasa may be relying

on the conduct alleged in support of other claims, and may have
mentioned “retaliation” in reference to his intentional
infliction of emotional distress claim intending to rely on the
actions alleged in connection with his Title VII retaliation
claim.

Jinadasa’s Second Amended Complaint, however, fails to

allow this court to determine whether either of these is true.
Jinadasa’s conclusory statement that emotional distress was
intentionally inflicted on him, without more, is insufficient.
Without an adequate understanding of the basis of
Jinadasa’s claim, this court cannot determine whether, as
Defendants argue, the claim is barred by the exclusivity
provision of Hawaii’s workers’ compensation law.
Stat. § 386-5.

See Haw. Rev.

The exclusivity provision in section 386-5 of

Hawaii Revised Statutes bars suits by employees against employers
for alleged injuries caused by the allegedly willful acts of coemployees acting in the course and scope of their employment.
See Yang v. Abercrombie & Fitch Stores, 128 Haw. 173, 183, 284
P.3d 946, 956 (App. 2012).

The Hawaii Supreme Court, however,

has not stated that the exclusivity provision in section 386-5
applies to claims based on discrimination.

See Furukawa v.

Honolulu Zoological Soc., 85 Haw. 7, 18, 936 P.2d 643, 654
(1997); see also Bolla v. Univ. of Hawai'i, 2014 WL 80554, at *2
(App. Jan. 8, 2014) (“Hawai‘i state courts have applied the HRS §
386–5 exclusivity provisions to [intentional infliction of

16

emotional distress] claims, unless they arise out of sexual
harassment, assault, or discrimination.”).

It appears that

Jinadasa’s intentional infliction of emotional distress claim may
be based on discrimination.

The court, therefore, declines at

this time to find that Jinadasa’s claim is barred by the
exclusivity provision in section 386-5.
However, even if Jinadasa’s intentional infliction of
emotional distress claim is not barred by section 386-5 and even
if Jinadasa is basing that claim on all of the alleged actions
cited in support of other claims, he would not state a plausible
intentional infliction of emotional distress claim.
To establish a claim for intentional infliction of
emotional distress, a plaintiff must show “1) that the act
allegedly causing the harm was intentional or reckless, 2) that
the act was outrageous, and 3) that the act caused 4) extreme
emotional distress to another.”

Hac v. Univ. of Hawaii, 102 Haw.

92, 106-07, 73 P.3d 46, 60-61 (2003).

The conduct at issue must

be “so outrageous in character, and so extreme in degree, as to
go beyond all bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community.”

Tseu ex rel.

Hobbs v. Jeyte, 88 Haw. 85, 93, 962 P.2d 344, 352 (1998)
(internal quotation marks omitted).
Given the bareness of Jinadasa’s factual allegations,
the court cannot conclude that Defendants’ actions were

17

sufficiently outrageous to constitute intentional infliction of
emotional distress.

Intentional infliction of emotional distress

may only be established in cases involving particularly extreme
conduct.
E.

Jinadasa Lacks Standing to Seek a Permanent
Injunction on Behalf of Others.

In his prayer for relief, Jinadasa requests that this
court issue a permanent injunction “urging the defendants and
Brigham Young University-Hawaii from employment practices or
retaliations that discriminates against blacks, polynesians,
women, and other non-caucasian minorities at the university.”
ECF No. 29, PageID # 109.
relief.

Jinadasa lacks standing to pursue such

See Patee v. Pac. Nw. Bell Tel. Co., 803 F.2d 476,

478-79 (9th Cir. 1986) (employees lack standing to bring Title
VII suit based on discrimination against others); Sidari v.
Orleans Cnty., 174 F.R.D. 275, 285 (W.D.N.Y. 1996) (striking
plaintiff’s request for relief on behalf of “other persons
similarly situated” based on lack of standing).
F.

Defendants’ Motion to Strike is Denied.

Defendants request that this court strike allegations
in Jinadasa’s Second Amended Complaint regarding “gender
discrimination” and “multiple discrimination filings.”
No. 38-1, PageID # 315.

See ECF

Because this court is dismissing all

claims in the Second Amended Complaint, Defendants’ motion to
strike is denied as moot.
18

V.

CONCLUSION.
Defendants’ motion to dismiss is granted and motion to

strike is denied.

Jinadasa’s claims, except for his Title VII

claims against the individual Defendants, are dismissed without
prejudice.

No later than June 22, 2015, Jinadasa may file a

Third Amended Complaint addressing the deficiencies noted in the
present order.

Jinadasa’s Title VII claims against the

individual Defendants may not be included in his Third Amended
Complaint.

Jinadasa’s Third Amended Complaint must be a

freestanding, independent document that does not refer to prior
complaints.

Once a complaint is dismissed, it is no longer

operative, and any new complaint must be complete in and of
itself.
If Jinadasa intends to assert sex discrimination, he
must make that clear (and should at least consider any issue of
failure to exhaust his remedy with the EEOC).
If Jinadasa fails to file a Third Amended Complaint by
June 22, 2015, the court may automatically dismiss this action.

19

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 27, 2015.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Jinadasa v. Brigham Young University-Hawaii, et al., Civ. No. 14-00441
SOM/BMK; ORDER GRANTING MOTION TO DISMISS AND DENYING MOTION TO STRIKE

20