Creamer v. County of Kauai et al
Filing
25
ORDER GRANTING COUNTY OF KAUAI, SCOTT BREDE, IN HIS OFFICIAL CAPACITY, AND ROY ASHER, IN HIS OFFICIAL CAPACITY'S MOTION TO DISMISS COMPLAINT (ECF NO. 13 ) WITH LEAVE TO AMEND - Signed by JUDGE HELEN GILLMOR on 11/30/2017. "( 1) The Complaint is DISMISSED WITH LEAVE TO AMEND for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). (2) Plaintiff may file an Amended Complaint curing the deficiencies of his claims against the Defendant County of K auai on or before Wednesday, January 17, 2018 . (3) Failure to timely amend and cure the pleading deficiencies noted herein will result in dismissal of this action with prejudice for failure to state a claim." (e mt, )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). Danny Lee Creamer served by first class mail to the address of record on November 30, 2017.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
Plaintiff,
)
)
vs.
)
)
COUNTY OF KAUAI; SCOTT BREDE, )
in his official capacity and )
ROY ASHER, in his official
)
capacity,
)
)
Defendants.
)
_______________________________ )
DANNY LEE CREAMER,
CIVIL NO. 16-00648 HG-KJM
ORDER GRANTING COUNTY OF KAUAI, SCOTT BREDE, IN HIS OFFICIAL
CAPACITY, AND ROY ASHER, IN HIS OFFICIAL CAPACITY’S MOTION TO
DISMISS COMPLAINT (ECF No. 13) WITH LEAVE TO AMEND
Plaintiff Danny Lee Creamer, a former police officer with
the Kauai Police Department, filed a complaint against the County
of Kauai, Lieutenant Scott Brede, and Assistant Chief Roy Asher
of the Kauai Police Department.
Plaintiff’s pleading is a form complaint.
bones allegations and limited information.
It contains bare
Construed liberally,
Plaintiff’s Complaint alleges that Defendants discriminated
against him on the basis of his race, color, age, and disability.
Defendants filed a Motion to Dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6).
The Complaint is insufficient
in its present form to state a claim upon which relief may be
granted.
Defendants’ Motion to Dismiss (ECF No. 13) is GRANTED WITH
LEAVE TO AMEND.
1
PROCEDURAL HISTORY
On December 6, 2016, Plaintiff Danny Lee Creamer filed a
COMPLAINT FOR EMPLOYMENT DISCRIMINATION.
(ECF No. 1).
On June 1, 2017, Defendants filed a pleading entitled
DEFENDANTS COUNTY OF KAUA’I, SCOTT BREDE, IN HIS OFFICIAL
CAPACITY, AND ROY ASHER, IN HIS OFFICIAL CAPACITY’S MOTION TO
DISMISS COMPLAINT FILED ON DECEMBER 6, 2016.
(ECF No. 13).
On September 11, 2017, Plaintiff filed an OPPOSITION. (ECF
No. 23).
On September 26, 2017, Defendants filed a REPLY.
(ECF No.
24).
The court elected to decide the Motion without a hearing
pursuant to Local Rule 7.2(d).
(ECF No. 14).
BACKGROUND
Plaintiff Danny Lee Creamer was a police officer with the
Kauai Police Department from 1990-2014.
IIIE, ECF No. 1).
1956.
(Complaint at ¶¶ IC,
Plaintiff is an African American male born in
(Id. at ¶ IIID).
Plaintiff alleges that he is disabled
due to occupational and mental disorders which led to intense
headaches, stomach problems and loss of sleep and appetite.
(Id.)
Plaintiff states that he “developed physical symptoms in
body areas which were not normal functioning.”
(Id. at ¶ IIIE).
Plaintiff states that he was diagnosed by his doctor and a
doctor chosen by the Police Department.
2
(Exhibit A, attached to
Complaint at ¶ 8, ECF No. 1-1).
Plaintiff claims that discriminatory acts based on his race,
color, age, and disability occurred on April 17, 2014, May 20,
2014, and December 6, 2016.
(Complaint at ¶ IIIC, ECF No. 1).
Plaintiff struggled with a new reporting system.
IIIE).
(Id.)
(Id. at ¶
Plaintiff reported his difficulties with the new system.
Plaintiff alleges unspecified disciplinary actions taken
against him.
(Id.)
Plaintiff states that when he became ill and was unable to
return to work, he was denied medical treatment.
attached to Complaint at ¶ 5, ECF No. 1-1).
(Exhibit A,
Plaintiff alleges
that Lieutenant Brede’s unspecified acts led to him feeling
ashamed, embarrassed, and humiliated.
(Id. at ¶ 6).
Plaintiff
states that due to his age, he was not given “due process of
chain of command forewarning [sic] that reports or work was
inefficient” by his immediate supervisor.
(Id. at ¶¶ 7, 9).
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) (“Rule
12(b)(6)”) permits dismissal of a complaint that fails “to state
a claim upon which relief can be granted.”
Under Rule 12(b)(6),
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).
Courts may also “consider certain materials—documents
attached to the complaint, documents incorporated by reference in
3
the complaint, or matters of judicial notice—without converting
the motion to dismiss into a motion for summary judgment.”
United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
Documents whose contents are alleged in a complaint and whose
authenticity is not questioned by any party may also be
considered in ruling on a Rule 12(b)(6) motion to dismiss.
See
Branch v. Tunnell, 14 F.3d 449, 453–54 (9th Cir. 1994), overruled
on other grounds by Galbraith v. County of Santa Clara, 307 F.3d
1119 (9th Cir. 2002).
If a court converts a motion to dismiss
into a motion for summary judgment, the court must give the
parties notice and a reasonable opportunity to supplement the
record.
Bank Melli Iran v. Pahlavi, 58 F.3d 1406, 1408 (9th Cir.
1995).
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.
See Sprewell, 266 F.3d at 988;
Nat'l Assoc. for the Advancement of Psychoanalysis v. Cal. Bd. of
Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000); In re Syntex
Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).
Moreover,
the court need not accept as true allegations that contradict
matters properly subject to judicial notice or allegations
contradicting the exhibits attached to the complaint.
4
Sprewell,
266 F.3d at 988.
In summary, to survive a Rule 12(b)(6) motion to dismiss,
“[f]actual 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 citations and quotations omitted). “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.”
citations and quotations omitted).
Id.
(internal
Dismissal is appropriate
under Rule 12(b)(6) if the facts alleged do not state a claim
that is “plausible on its face.”
Id. at 570.
“Determining
whether a complaint states a plausible claim for relief will ...
be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Iqbal, 556 U.S. 662 (2009) (citation omitted).
Ashcroft v.
“[W]here the
well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it
has not ‘show[n]’—‘that the pleader is entitled to relief.’ ”
Id.
(quoting Fed.R.Civ.P. 8(a)(2)).
5
ANALYSIS
Plaintiff is appearing pro se.
construes Plaintiff’s filings.
The Court liberally
See Erickson v. Pardus, 551 U.S.
89, 94 (2007); Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.
1987) (“The Supreme Court has instructed the federal courts to
liberally construe the ‘inartful pleading’ of pro se litigants.”)
(citing Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per
curiam)).
The Court recognizes that “[u]nless it is absolutely
clear that no amendment can cure the defect ... a pro se litigant
is entitled to notice of the complaint's deficiencies and an
opportunity to amend prior to dismissal of the action.”
Lucas v.
Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also
Crowley v. Bannister, 734 F.3d 967, 977–78 (9th Cir. 2013).
A
court may, however, deny leave to amend where further amendment
would be futile.
Plaintiff’s Complaint alleges four causes of action:
First, Plaintiff claims that he was discriminated against on
the basis of his race and color in violation of Title VII of the
Civil Rights Act of 1964.
Second, Plaintiff claims that he was discriminated against
on the basis of his age in violation of the Age Discrimination in
Employment Act.
Third, Plaintiff claims that he was discriminated against on
the basis of disability in violation of the Americans With
Disabilities Act.
6
Fourth, Plaintiff claims that he was retaliated against for
complaining of discrimination based on his race, color, age, and
disability.
(Complaint at pp. 4-6, ECF No. 1).
seeks punitive damages.
Plaintiff also
(Id. at p. 7).
I. Plaintiff’s Claims Against Individuals
Plaintiff’s claims under Title VII of the Civil Rights Act
of 1964, the Americans with Disabilities Act, and the Age
Discrimination in Employment Act asserted against Defendants
Scott Brede and Roy Asher in their official capacities duplicate
the claims asserted against the County of Kauai.
Plaintiff’s claims against Defendant Scott Brede and Roy
Asher in their official capacities are construed as claims
against the County of Kauai.
To the extent that Plaintiff asserts Claims against Brede
and in Asher in their individual capacities, they are dismissed.
Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act, and the Age Discrimination in Employment Act do
not provide for personal liability against individuals.
Miller
v. Maxwell's Int'l Inc., 991 F.2d 583, 587 (9th Cir. 1993)(no
individual liability under Title VII or the Age Discrimination in
Employment Act);
Walsh v. Nevada Dep't of Human Res., 471 F.3d
1033, 1038 (9th Cir. 2006)(no individual liability under the
Americans with Disabilities Act).
Plaintiff's claims against Defendants Lieutenant Scott Brede
and Assistant Chief Roy Asher are DISMISSED WITH PREJUDICE.
7
II. Plaintiff’s Claims Discrimination Based on His Race and Color
Title VII of the Civil Rights Act of 1964 provides, in
relevant part:
It shall be unlawful employment practice for an
employer ... to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against
any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of
such individual's race, color, religion, sex, or
national origin.
42 U.S.C. § 2000e–2(a)(1) (2006).
A person suffers disparate treatment in his employment when
he is singled out and treated less favorably than others
similarly situated on account of race.
See McGinest v. GTE
Service Corp., 360 F.3d 1103, 1121 (9th Cir. 2004).
To establish
a prima facie case of disparate treatment discrimination under
Title VII, a plaintiff must demonstrate that: (1) he belongs to a
protected class; (2) he was performing his job satisfactorily;
(3) he suffered an adverse employment action; and (4) similarly
situated employees outside of his protected class were treated
more favorably.
See Cornwell v. Electra Cent. Credit Union, 439
F.3d 1018, 1028 (9th Cir. 2006) (citing McDonnell Douglas Corp.
V. Green, 411 U.S. 792, 802 (1973)).
The Ninth Circuit Court of Appeals in Starr v. Baca examined
recent Supreme Court cases on pleadings, including those dealing
with Title VII claims, and explained two principles relevant to
analyzing the sufficiency of such pleadings:
First, to be entitled to the presumption of truth,
allegations in a complaint or counterclaim may not
8
simply recite the elements of a cause of action, but
must contain sufficient allegations of underlying facts
to give fair notice and to enable the opposing party to
defend itself effectively. Second, the factual
allegations that are taken as true must plausibly
suggest an entitlement to relief, such that it is not
unfair to require the opposing party to be subjected to
the expense of discovery and continued litigation.
652 F.3d 1202, 1216 (9th Cir. 2011); see also Heyer v. Governing
Bd. Of Mt. Diable Unified School Dist., 521 Fed. App’x. 599, 600
(9th Cir. 2013).
This Court must first analyze the four McDonnell Douglas
elements to determine whether a complaint sufficiently pleads
each element of the disparate treatment prima facie case and
provides enough factual allegations to plausibly infer each
element of the prima facie case.
Plaintiff has failed to establish a prima facie case of
discrimination based on the facts alleged in his Complaint.
Plaintiff has claimed that he is a member of a protected class.
(Complaint at ¶ IIID, ECF No. 1).
Plaintiff has not put forth
any facts pertaining to his job performance, an adverse
employment action, or the treatment of similarly situated
employees outside of his protected class.
Plaintiff’s complaint
could be read to show that he was not satisfactorily performing
his job.
He lists difficulties he had in utilization of a new
reporting system.
(Id. at ¶ IIIE).
For the first time in his Opposition, Plaintiff alleges
facts related to his Title VII claims.
at pp. 8-9, ECF No. 23).
(Plaintiff’s Opposition
Plaintiff is prohibited from making new
9
allegations for the first time in his opposition.
See Schneider
v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n.1 (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 ....”) (citations omitted); Clegg v. Cult Awareness
Network, 18 F.3d 752, 754 (9th Cir. 1994) (finding that for
purposes of a motion to dismiss, the court's review is limited to
the contents of the complaint).
Plaintiff’s Title VII claim for race and color
discrimination is DISMISSED WITH LEAVE TO AMEND.
III. Plaintiff’s Claims Discrimination Based on His Age
The Age Discrimination in Employment Act (“ADEA”) prohibits
discrimination based on age.
29 U.S.C. § 623(a)(1) (“It shall be
unlawful for an employer to ... discriminate against any
individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age”).
The prohibition is “limited to individuals who are at least 40
years of age.”
Id. § 631(a).
Under a “disparate treatment” theory of discrimination, a
plaintiff in an ADEA case can establish age discrimination based
on: (1) “circumstantial evidence” of age discrimination; or (2)
“direct evidence” of age discrimination.
Sheppard v. David Evans
& Assoc., 694 F.3d 1045, 1049–50 (9th Cir. 2012) (citing Diaz v.
Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008)
(discussing circumstantial evidence of age discrimination); Enlow
10
v. Salem–Keizer Yellow Cab Co., Inc., 389 F.3d 802, 811 (9th Cir.
2004) (discussing direct evidence of age discrimination)).
Claims of age discrimination based on circumstantial
evidence are analyzed under the “three-stage burden shifting
framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973).”
Diaz, 521 F.3d at 1207.
Under the McDonnell
Douglas framework:
[T]he employee must first establish a prima facie case
of age discrimination. If the employee has justified a
presumption of discrimination, the burden shifts to the
employer to articulate a legitimate, non-discriminatory
reason for its adverse employment action. If the
employer satisfies its burden, the employee must then
prove that the reason advanced by the employer
constitutes mere pretext for unlawful discrimination.
Diaz, 521 F.3d at 1207.
To establish a prima facie case of
discrimination, a plaintiff must allege in his complaint that:
(1) he was at least forty years old; (2) he was performing his
job satisfactorily; (3) there was an adverse employment action;
and (4) he was “either replaced by [a] substantially younger
[employee] with equal or inferior qualifications or discharged
under circumstances otherwise giving rise to an inference of age
discrimination.”
Id.
(internal quotation marks omitted).
“An
inference of discrimination can be established by showing the
employer had a continuing need for the employee['s] skills and
services in that their various duties were still being performed
... or by showing that others not in their protected class were
treated more favorably.”
Id. at 1207–08 (internal marks and
quotation marks omitted).
11
Plaintiff has not stated a claim for age discrimination.
Plaintiff states that he is over 40 years old.
IIID, ECF No. 1).
(Complaint at ¶
It is unclear what adverse employment action
Plaintiff is alleging.
In his complaint Plaintiff states that
due to his age, he was not given “due process of chain of command
forewarning [sic] that reports or work was inefficient” by his
immediate supervisor.
9, ECF No. 1-1).
(Exhibit A, attached to Complaint at ¶¶ 7,
Construing Plaintiff’s Complaint liberally,
Plaintiff may be alleging that he was reprimanded or written up
by his supervisor.
Plaintiff does not claim that this has
materially affected the compensation, terms, conditions, or
privileges of his employment.
Being “written up,” without more,
does not necessarily constitute an adverse employment action.
See, e.g., Lloyd v.. Swifty Transp., Inc., 552 F.3d 594, 602 (7th
Cir.2009) (“[W]ritten reprimands without any changes in the terms
or conditions of [ ] employment are not adverse employment
actions.”); Lambdin v. Marriott Resorts Hosp. Corp., No. CIV.
14-00345 SOM, 2015 WL 263569, at *3 (D.Haw. Jan. 21, 2015).
Even if Plaintiff’s allegations did state an adverse
employment action, Plaintiff has not pled that he was performing
his job satisfactorily or that he was replaced by a substantially
younger employee with equal or inferior qualifications.
Plaintiff again raises claims related to his age
discrimination cause of action for the first time in his
Opposition.
(Plaintiff’s Opposition at pp. 9-10, ECF No. 23).
Plaintiff may not allege new facts for the first time in his
12
opposition.
See Schneider, 151 F.3d at 1197 n.1; Clegg, 18 F.3d
at 754.
Plaintiff’s claim for age discrimination pursuant to the Age
Discrimination in Employment Act is DISMISSED WITH LEAVE TO
AMEND.
IV. Plaintiff’s Americans With Disabilities Act Claims
Title I of the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12112(a), prohibits an employer from discriminating
“against a qualified individual with a disability because of the
disability of such individual in regard to job application
procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions,
and privileges of employment.”
42 U.S.C. § 12112(a).
The Court applies the burden-shifting analysis derived from
McDonnell Douglas to claims of discrimination on account of a
disability.
411 U.S. 792; Raytheon Co. v. Hernandez, 540 U.S.
44, 49-50 (2003).
Under the burden-shifting analysis, the employee must first
establish a prima facie disability discrimination claim. Raytheon
Co., 540 U.S. at 49 n.3.
The employee must allege that:
(1) he was “disabled” within the meaning of the ADA
statute;
(2) he was a “qualified individual,” meaning he was
able to perform the essential functions of his job,
either with or without reasonable accommodations at the
time of his disability; and,
13
(3) he suffered an adverse employment action “because
of” his disability.
Hutton v. Elf Atochem North Am., Inc., 273 F.3d 884, 891
(9th Cir. 2001).
“An employer discriminates against a qualified individual
with a disability by ‘not making reasonable accommodations to the
known physical or mental limitations of an otherwise qualified
individual with a disability who is an applicant or employee,
unless [the employer] can demonstrate that the accommodation
would impose an undue hardship on the operation of the business
of [the employer].’“
Zivkovic v. Southern California Edison Co.,
302 F.3d 1080, 1089 (9th Cir. 2002) (quoting 42 U.S.C. §
12112(b)(5)(A) (emphasis added)); see Zukle v. Regents of Univ.
of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999) (“Because the
ADA was modeled on section 504 of the Rehabilitation Act, “courts
have applied the same analysis to claims brought under both
statutes.”).
Once again, Plaintiff alleges facts related to his
disability discrimination claims for the first time in his
Opposition.
(Plaintiff’s Opposition at p. 10, ECF No. 23).
Plaintiff may not allege new facts for the first time in his
Opposition.
See Schneider, 151 F.3d at 1197 n.1; Clegg, 18 F.3d
at 754.
1. Disability Under the Americans with Disabilities Act
The Americans with Disabilities Act defines disability with
14
respect to an individual as “(A) a physical or mental impairment
that substantially limits one or more of the major life
activities of such individual; (B) a record of such impairment;
or (C) being regarding as having such an impairment.”
42 U.S.C.
§ 12102(1).
In 2008, Congress adopted the ADA Amendments Act, in order
to clarify that the intention of the Americans with Disabilities
Act is to provide a broad scope of protection and to expressly
reject the more stringent standards set forth in Sutton v. United
Air Lines, 527 U.S. 471 (1999); Pub. L. No. 110-325, 122 Stat.
3553 (2008).
Plaintiff has not alleged facts to state a claim for
disability discrimination.
Plaintiff claims that he is disabled
due to "occupational and mental disorders which lead to intense
[sic] headaches, stomach problems [sic] [and] loss of sleep and
appetite.”
(Complaint at IIID, ECF No. 1).
Plaintiff states
that he "developed physical symptoms in body areas which were not
normal functioning."
(Id. at IIIE).
Plaintiff alleges that he
was diagnosed by his own doctor, as well as a doctor of the
Police Department’s choice, but does not state the result of
these diagnoses.
1-1).
(Exhibit A, attached to Complaint at 8, ECF No.
Even under the liberal pro se pleading standard, Plaintiff
has only put forward conclusory allegations of disability.
15
2. Qualified Individual under the Americans with
Disabilities Act
Even if Plaintiff was deemed to be disabled within the
meaning of the Americans with Disabilities Act, Plaintiff also
failed to establish the second prong of the McDonnell Douglas
framework.
Plaintiff has not shown how he was a qualified
individual at the time of his termination.
The Americans with Disabilities Act defines “qualified
individual” as an individual with a disability who, with or
without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds
or desires.
42 U.S.C. § 12111(8); Nunes v. Wal-Mart, Stores,
Inc., 164 F.3d 1243, 1246 (9th Cir. 1999).
The Americans with Disabilities Act requires that a
plaintiff be able to perform the essential functions of his job
“with or without reasonable accommodation.”
12111(8).
42 U.S.C. §
A job's essential functions are the fundamental job
duties of the employment position not including the marginal
functions of the position.
29 C.F.R. § 1630.2(n)(1); Bates v.
United Parcel Service, Inc., 511 F.3d 974, 990 (9th Cir. 2007).
Plaintiff only claims that he was an officer with the Kauai
Police Department and that he had difficulties with the new
reporting system used by the department.
IIIE, ECF No. 1).
(Complaint at ¶¶ IC,
Plaintiff has not alleged whether utilizing
the new reporting system is an essential function of Plaintiff’s
employment and whether he would be able to use the reporting
16
system with or without a reasonable accommodation.
Plaintiff has
not stated facts to show that he is a qualified individual.
3. Adverse Employment Action Under the Americans with
Disabilities Act
An adverse employment action “materially affects the
compensation, terms, conditions, or privileges of ...
employment.”
Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th
Cir. 2008) (brackets omitted).
It is unclear what adverse employment action Plaintiff is
alleging.
In his complaint Plaintiff states that due to his age,
he was not given “due process of chain of command forewarning
[sic] that reports or work was inefficient” by his immediate
supervisor.
No. 1-1).
(Exhibit A, attached to Complaint at ¶¶ 7, 9, ECF
Construing Plaintiff’s Complaint liberally, Plaintiff
claims that he was reprimanded or written up by his supervisor.
Plaintiff does not allege that this has materially affected the
compensation, terms, conditions, or privileges of his employment.
Being written up, without more, does not necessarily constitute
an adverse employment action. See, e.g., Lloyd, 552 F.3d at 602
(“[W]ritten reprimands without any changes in the terms or
conditions of [ ] employment are not adverse employment
actions.”); Lambdin, 2015 WL 263569 at *3.
Plaintiff’s Complaint is too sparse to support a violation
of the Americans with Disabilities Act.
Plaintiff’s disability
discrimination and failure to accommodate claims pursuant to the
17
Americans with Disabilities Act are DISMISSED WITH LEAVE TO
AMEND.
V. Plaintiff’s Retaliation Claims
Employers are prohibited under Title VII of the Civil Rights
Act of 1964 from retaliating against employees who have “opposed,
complained of, or sought remedies for, unlawful workplace
discrimination.”
Univ. of Texas Sw. Med. Ctr. v. Nassar, 133
S.Ct. 2517, 2522 (2013); 42 U.S.C. § 2000e–3(a).
protections apply to police officers.
Title VII's
Moore v. City of San Jose,
615 F.2d 1265 (9th Cir. 1980).
The Age Discrimination in Employment Act anti-retaliation
provision is parallel to the anti-retaliation provision contained
in Title VII and cases interpreting the latter provision are
frequently relied upon in interpreting the former.
Poland v.
Chertoff, 494 F.3d 1174, 1180 n.1 (9th Cir. 2007)(internal
quotations and citations omitted).
Similarly, retaliation claims under the Americans with
Disabilities Act also follow the Title VII retaliation framework.
Brown v. City of Tucson, 336 F.3d 1181, 1186–87 (9th Cir. 2003).
Courts analyze retaliation cases by applying the
burden-shifting McDonnell Douglas framework. 411 U.S. at 792;
Dawson v. Entek Int'l, 630 F.3d 928, 936 (9th Cir. 2011).
To establish a prima facie case of retaliation, Plaintiff
must demonstrate that:
(1)
He engaged in a protected activity;
18
(2)
Defendants subjected him to an adverse employment
action; and
(3)
a causal link existed between the protected activity
and the adverse employment action.
Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185,
1196-97 (9th Cir. 2003).
The United States Supreme Court has recognized that a
plaintiff alleging unlawful retaliation pursuant to Title VII
must establish “but-for” causation, meaning the employee must
demonstrated that he would not have suffered the adverse
employment action but for his engagement in protected activity.
Nassar, 133 S.Ct. at 2533.
But-for causation may be shown
through direct and circumstantial evidence.
Yartzoff v. Thomas,
809 F.2d 1371, 1376 (9th Cir. 1987).
Plaintiff has failed to plead sufficient facts to show
retaliation based on his race, color, or age.
Plaintiff has
failed to state what protected activity he was engaged in.
It is
also unclear what the adverse employment action plaintiff
alleges.
An adverse employment action “materially affects the
compensation, terms, conditions, or privileges of ...
employment.”
Davis, 520 F.3d at 1089.
Plaintiff’s Complaint
only consists of an allegation that unspecified disciplinary
actions were taken against him.
1).
(Complaint at ¶ IIIE, ECF No.
In his Complaint, Plaintiff states that due to his age, he
was not given “due process of chain of command forewarning [sic]
that reports or work was inefficient” by his immediate
supervisor.
(Exhibit A, attached to Complaint at ¶¶ 7, 9, ECF
19
No. 1-1).
These allegations are insufficiently specific to
constitute an adverse employment action.
Plaintiff also fails to
plead a causal link between the protected activity and the
adverse employment action.
Plaintiff has failed to state a claim for retaliation under
either Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, or the Americans with
Disabilities Act.
Plaintiff’s claims are DISMISSED WITH LEAVE TO
AMEND.
VI. Plaintiff’s Claims for Punitive Damages
Title VII of the Civil Rights Act of 1964 precludes an award
of punitive damages against Defendant County of Kauai.
Title VII
precludes litigants from recovering punitive damages against a
government, government agency, or political subdivision.
42
U.S.C. § 1981a(b)(1).
Here, because Defendant County of Kauai is a “government,
government agency, or political subdivision,” punitive damages
are not available. See Kaulia v. Cty. of Maui, Civ. No. 05-00290
JMS-LEK, 2006 WL 4660130, at *6-7 (D. Haw. May 24, 2006) (noting
punitive damages not available against a municipality under Title
VII); Mayfield v. Cty. of Merced, No. CV F 13-1619 LJO BAM, 2014
WL 2574791, at *17 (E.D. Cal. June 9, 2014) (citing 42 U.S.C. §
1981a(b)(1) and noting “Title VII specifically exempts public
entities from punitive damages”), report and recommendation
20
adopted, No. 1:13-CV-1619 LJO-BAM, 2014 WL 3401177 (E.D. Cal.
July 10, 2014).
Plaintiff's claims for punitive damages are DISMISSED WITH
PREJUDICE.
CONCLUSION
A pro se litigant must be given leave to amend his or her
complaint unless it is absolutely clear that the deficiencies of
the complaint may not be cured by amendment.
Karim–Panahi v. Los
Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988).
The Ninth Circuit Court of Appeals has held that the policy
of “freely” permitting a party to amend “is to be applied with
extreme liberality.”
Eminence Capital, LLC v. Aspeon, Inc., 316
F.3d 1048, 1051 (9th Cir. 2003).
(1)
The Complaint is DISMISSED WITH LEAVE TO AMEND for
failure to state a claim pursuant to Fed. R. Civ. P.
12(b)(6).
(2)
Plaintiff may file an Amended Complaint curing the
deficiencies of his claims against the Defendant County
of Kauai on or before Wednesday, January 17, 2018.
(3)
Failure to timely amend and cure the pleading
deficiencies noted herein will result in dismissal of
21
this action with prejudice for failure to state a
claim.
IT IS SO ORDERED.
DATED:
Honolulu, Hawaii, November 30, 2017.
Danny Lee Creamer v. County of Kauai; Scott Brede, in his
official capacity; and Roy Asher in his official capacity; Civ
No. 16-00648 HG-KJM; ORDER GRANTING COUNTY OF KAUAI, SCOTT BREDE,
IN HIS OFFICIAL CAPACITY, AND ROY ASHER, IN HIS OFFICIAL
CAPACITY’S MOTION TO DISMISS COMPLAINT (ECF No. 13) WITH LEAVE TO
AMEND
22
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