Rusthoven v. Victor School District #7

Filing 13

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS. The Complaint is DISMISSED WITH PREJUDICE. Signed by Judge Dana L. Christensen on 11/17/2014. (APP, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

CV 14-170-M-DLC

CLINTON RUSTHOVEN,
Plaintiff,

ORDER

vs.

FILED

VICTOR SCHOOL DISTRICT #7,

NOV 1 7 2014

Defendant.

Clerk, u.s. District Court

District Of Montana

Missoula

United States Magistrate Judge Jeremiah C. Lynch entered his Findings and
Recommendation on September 30,2014, recommending that Clinton
Rusthoven's Complaint be dismissed with prejudice for failure to state a claim
upon which relief may be granted. Rusthoven timely objected to the Findings and
Recommendation and is therefore entitled to de novo review of the specified
findings or recommendations to which he objects. 28 U.S.C. § 636(b)(1). For the
reasons stated below, the Court adopts Judge Lynch's findings and
recommendation in full.
Rusthoven, proceeding pro se, filed an original Complaint and moved to
proceed in forma pauperis on May 23,2014. Upon in forma pauperis review,

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Judge Lynch dismissed the Complaint without prejudice for failure to state a
claim. Rusthoven was given leave to amend his Complaint. Rusthoven then filed
an Amended Complaint. Judge Lynch again conducted a preliminary screening of
the Amended Complaint under Title 28 U.S.C. § 1915(e)(2). Based upon this
screening, Judge Lynch found that Rusthoven's claims under Title I of the
Americans with Disabilities Act ("ADA"), Title VII of the Civil Rights Act of
1964 ("Title VII"), and the Genetic Information Nondiscrimination Act of 2008
("GINA") were legally deficient, and therefore, recommended dismissal of the
Complaint for failure to state a claim. Because the Court had already afforded
Rusthoven an opportunity to cure defects previously identified, Judge Lynch
recommended that the dismissal be with prejudice.
Judge Lynch correctly provided Rusthoven with notice of the defects in his
Complaint in order to give Rusthoven an "opportunity to amend effectively."

Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). Judge Lynch's Findings
and Recommendation again provided Rusthoven with notice of the defects in his
Amended Complaint. In his objections, Rusthoven has included information that
was not pled in either of his Complaints. Because Rusthoven is a pro se litigant,
and dismissal with prejudice is a harsh remedy, the Court will construe
Rusthoven's objections as being incorporated into his Complaint.
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I. Americans with Disabilities Act Claim

Rusthoven alleges discrimination under Title I ofthe ADA. Title I prohibits
discrimination "against a qualified individual on the basis of disability in regard to
job application procedures ...." 42 U.S.C. § 12112(a). To prevail on his Title I
claim, Rusthoven "must establish a prima facie case by showing that: (1) he is a
disabled person within the meaning of the statute; (2) he is a qualified individual
with a disability; and (3) he suffered an adverse employment action because of his
disability." Hutton v. ElfAtochem North America, Inc., 273 F.3d 884, 891 (9th
Cir. 2001) (citations omitted).

A. Disability
Rusthoven objects to Judge Lynch's findings and recommendations that
Rusthoven's Title I claim is deficient. Though not alleged in his Amended
Complaint, Rusthoven states in his objections that he has a "rare genetic syndrome
that gives him a meek appearance, and caused physical genetic defects." (Doc. 12
at 2.) In his objections, Rusthoven has provided unathenticated photos of his
"deformed tongue that prevents him from speaking and eating as compared to the
average applicant for employment," (Doc. 12-1 at 4), and of "his deformed right
hand," (Doc. 12-1 at 5). Even after incorporating these new facts into Rusthoven's
Complaint, the Court concludes that Rusthoven fails to state a claim under Title I
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of the ADA.
Rusthoven does not allege any facts suggesting that the defonnity of his
right hand renders him a disabled person within the meaning of the ADA; thus the
Court will only analyze the speaking and eating claims. Under the ADA,
"disability" means "a physical or mental impainnent that substantially limits one
or more major life activities" of an individual. 42 U.S.C. § 12102(1 )(A). "Major
life activities" include eating and speaking. 42 U.S.C. § 12102(2)(A). Whether a
disability "substantially limits" Rusthoven's eating and speaking "requires an
individualized assessment." 29 C.F.R. § 1630.20)(1)(iv).
This assessment requires a comparison of Rusthoven's eating and speaking
"to most people in the general population." 29 C.F.R. § 1630.20)(1)(ii). The
"substantially limits" standard, however, is not a "demanding standard," 29
C.F.R. § 1630.20)(1 )(ii), and should not require "extensive analysis," 29 C.F .R. §
1630.20)(1 )(iii).
Because Rusthoven is proceeding pro se, the pleading is held "to less
stringent standards than fonnal pleadings drafted by lawyers." Haines v. Kerner,
404 U.S. 519, 520 (1972). Based on the lenient criterion applied to pro se
complaints, and the undemanding requirements of the "substantially limits"
standard, the Court concludes, after incorporating facts alleged in his objections,
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that Rusthoven has alleged sufficient facts to support a plausible claim that he is
disabled within the meaning of the ADA.

B. Qualified Individual
Under the ADA, a "qualified individual" is "an individual 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).
In his objections, Rusthoven claims that he has worked for school districts in Las
Vegas, Nevada and Billings, Montana, and he also attached an unauthenticated
photo of a substitute teacher identification badge for Billings School District #2 in
his objections "to help support that he is qualified to be a substitute teacher in the
state of Montana." (Doc. 12 at 7; Doc 12-1 at 1.) After incorporating these facts
alleged in his objections, the Court concludes that Rusthoven has alleged
sufficient facts to support a plausible claim that he is a "qualified individual"
within the meaning of the ADA.

C. Adverse Employment Action
Title I provides that "[n]o covered entity shall discriminate against a
qualified individual on the basis ofdisability." 42 U.S.C. § 12112(a) (emphasis
added). Rusthoven must, therefore, allege "that his disability 'actually played a
role [in the employer's decisionmaking] process and had a determinative influence
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on the outcome. '" Hernandez v. Hughes Missile Systems Co., 362 F.3d 564, 568
(9th Cir. 2004) (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133, 141 (2000)) (alteration in original). In other words, Rusthoven must allege
that "he suffered an adverse employment action because o/his disability." Hutton,
273 F.3d at 891 (emphasis added).
Rusthoven claims Defendant lied to him about the amount of time it would
take to conduct a background check. He further claims in his objections that "the
events that lead [sic] up to his hiring was [sic] discriminatory." (Doc. 12 at 6.)
Even after incorporating facts alleged in his objections, the Court concludes that
Rusthoven has alleged no facts sufficient to establish a prima facie case that he
suffered an adverse employment action. Notably, Defendant hired Rusthoven.
An adverse employment action has been defined as an action that
"materially affect[s] the compensation, terms, conditions, or privileges of ...
employment." Chuang v. University o/California Davis, Bd.

Of Trustees, 225

F.3d 1115, 1126 (9th Cir. 2000) (defining "adverse employment action" for
purposes of Title VII ofthe Civil Rights Act of 1964). Adverse employment
actions must be "non-trivial." Brooks v. City o/San Mateo, 229 F.3d 917, 928
(9th Cir. 2000) (analyzing "adverse employment action" for purposes of Title VII
of the Civil Rights Act of 1964). Examples of adverse employment actions
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include "termination, dissemination of a negative employment reference, issuance
of an undeserved negative performance review and refusal to consider for
promotion." Id. Rusthoven has alleged no facts, including in his objections, to
establish a prima facie case that Defendant's delay in sending in a background
check adversely affected his employment. He has thus not shown that he
experienced an adverse employment action. Furthermore, Rusthoven does not
plausibly allege that any delay in sending in the background check was due to his
alleged disability. Therefore, Rusthoven's Title I claim under the ADA fails and
must be dismissed.

ll. Civil Rights Act Claim
Rusthoven alleges discrimination under Title VII. Title VII makes it
unlawful for an employer ''to fail or refuse to hire ... any individual ... because
of such individual's ... sex ...." 42 U.S.C. § 2000e-2(a)(1). To plead a
discrimination claim under Title VII, Rusthoven must establish a prima facie case
showing:
(1) he is a member of a protected class; (2) he was qualified for his
position; (3) he experienced an adverse employment action; and (4)
similarly situated individuals outside his protected class were treated
more favorably, or other circumstances surrounding the adverse
employment action give rise to an inference of discrimination.

Peterson v. Hewlett-Packard Co., 358 F.3d 599,603 (9th Cir. 2004) (citations
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omitted).
In his objections, Rusthoven claims that he is "bi-gender." (Doc. 12 at 2.)
In his objections, he provides unauthenticated photos ostensibly supporting this
claim. (Doc. 12-1 at 2-3.) Gender is a protected class under Title VII. Schwenk

v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (stating that "[d]iscrimination
because one fails to act in the way expected of a man or woman is forbidden under
Title VII"). After incorporating the facts alleged in his objections, the Court
concludes that Rusthoven has alleged sufficient facts to plausibly claim that he is a
member of a protected class.
As explained above, however, Rusthoven alleges no facts, including in his
objections, which support a plausible claim that he experienced a non-trivial
adverse employment action, or that Defendant discriminated against him because
of his gender identity. Therefore, Rusthoven's Title VII claim fails and must be
dismissed.

III. Genetic Information Nondiscrimination Act Claim
Under GINA, it is unlawful for an employer to "refuse to hire [someone] ...
because of genetic information with respect to the employee." 42 U.S.C. § 2000ff­
l(a)(1). GINA also prohibits employers from disclosing genetic information to
others. 42 U.S.C. § 2000ff-5(b).
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In his objections, Rusthoven claims that an employee of Defendant
"confessed that she was a friend of Plaintiff's on Facebook and saw most of his
posts about politics and his personal life." (Doc. 12 at 3.) Rusthoven further
alleges in his objections that he had posted information about his genetic disorder
on his Facebook account. Rusthoven does not allege that his genetic information
was ever seen by any employee of Defendant, let alone that this information
caused Defendant to refuse to hire him. In fact, he alleges that Defendant hired
him. Nor does Rusthoven allege that Defendant disclosed his genetic information
to others. Therefore, Rusthoven's GINA claim fails and must be dismissed.
The Court has liberally construed Rusthoven's Complaint because he is a
pro se litigant. Haines, 404 U.S. at 520. However, "a liberal interpretation of a
[pro se] civil rights complaint may not supply essential elements of the claim that
were not initially pled." Ivey v. Board ofRegents of Univ. ofAlaska, 673 F .2d
266,268 (9th Cir. 1982). Even after incorporating new facts from Rusthoven's
objections into his Complaint, the Court concludes that Rusthoven has again failed
to allege the essential elements of his claims. Judge Lynch, therefore, correctly
determined that Rusthoven's Complaint should be dismissed with prejudice for
failure to state a claim upon which relief may be granted.

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IT IS ORDERED that Judge Lynch's Findings and Recommendation
(Doc. 11) are ADOPTED IN FULL.
The Complaint (Doc. 9) is DISMISSED WITH PREJUDICE. The Clerk of
the Court shall enter judgment in favor of Defendant and against Plaintiff. This
case is CLOSED.
DATED this

11' }hday ofNovemb

Dana L. Christensen, Chief Ju(ige
United States District Court

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