Crawford v. United Food and Commercial Workers Union Local 711

Filing 4

ORDER Granting 1 Motion/Application for Leave to Proceed in forma pauperis. Plaintiff shall not be required to pay the filing fee of $350. The Clerk of Court shall file Plaintiff's Complaint. IT IS FURTHER ORDERED that the Complaint is D ISMISSED without prejudice for failure to state a claim upon which relief can be granted, with leave to amend. Amended Complaint deadline: 9/20/2012. Signed by Magistrate Judge Carl W. Hoffman on 08/21/2012. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MILTON O. CRAWFORD,

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Plaintiff,
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vs.
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UNITED FOOD AND COMMERCIAL
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WORKERS UNION LOCAL 711 et. al.,
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Defendants.
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__________________________________________)

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Case No. 2:12-cv-00121-KJD-CWH
ORDER

Plaintiff Milton O. Crawford, proceeding in this action pro se, has requested authority

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pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis, and submitted a Complaint (#1) on

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January 23, 2012.

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I.

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In Forma Pauperis Application
Plaintiff has submitted the affidavit required by § 1915(a) showing an inability to prepay

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fees and costs or give security for them. Accordingly, the request to proceed in forma pauperis will

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be granted pursuant to 28 U.S.C. § 1915(a). The Court will now review Plaintiff’s complaint.

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II.

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Screening the Complaint
Federal courts are given the authority to dismiss a case if the action is legally “frivolous or

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malicious,” fails to state a claim upon which relief may be granted, or seeks monetary relief from a

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defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). When a court dismisses a

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complaint under § 1915(a), the plaintiff should be given leave to amend the complaint with

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directions as to curing its deficiencies, unless it is clear from the face of the complaint that the

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deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th

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Cir. 1995).

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Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint
for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is

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essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d

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719, 723 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of

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the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v.

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Twombley, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual

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allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the

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elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v.

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Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled factual allegations

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contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal,

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556 U.S. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory

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allegations, do not suffice. Id. at 678. Secondly, where the claims in the complaint have not

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crossed the line from plausible to conceivable, the complaint should be dismissed. Twombly, 550

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U.S. at 570.

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It appears as though Plaintiff is attempting to state claims for intentional infliction of

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emotional and mental distress, racial discrimination, age discrimination, wage discrimination,

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gender discrimination, retaliation for engaging in protected activity, and wrongful discharge against

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Defendant Union. Plaintiff seeks punitive damages of $5 million, compensatory damages of

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$314,600, and costs. He alleges that Defendant Union ignored his verbal and written complaints of

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food safety concerns and unequal treatment, which resulted in him being subjected to a hostile

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work environment and wrongfully discharged.

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Plaintiff does not cite to any U.S. Statute for authority to file these claims against Defendant

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Union. The Court considered Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. for the

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discrimination, retaliation, and hostile work environment claims. Title VII allows a person to sue a

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labor organization for discrimination on the basis of race in membership practices or causing or

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attempting to cause an employer to discriminate on the basis of race, if he has exhausted both state

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and Equal Employment Opportunity Commission (EEOC) administrative procedures. 42 U.S.C. §

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2000e-2(c)(1-3). Once plaintiff files charges with the EEOC, the commission will investigate the

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charges, attempt to reach a settlement, and decide whether to sue the employer. 42 U.S.C. § 2000e-

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4-5. If the EEOC decides not to sue and if there is no settlement satisfactory to plaintiff, the EEOC
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will issue plaintiff a right-to-sue letter and plaintiff will have exhausted his remedies with the

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EEOC. See 42 U.S.C. § 2000e-5(f)(1). After receipt of the right-to-sue letter, plaintiff may sue in

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federal or state court. Id. Here, Plaintiff has attached a Notice of Suit Rights letter from the EEOC

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dated October 27, 2011 and subsequently filed this action within 90 days. Thus, it appears Plaintiff

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has exhausted his administrative remedies.

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However, Plaintiff has not provided adequate factual support for his discrimination,

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retaliation, or hostile work environment claims. To state a claim for relief, “a complaint must

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contain sufficient factual matter to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556

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U.S. at 678-79. In order to prove a prima facie case of discrimination in violation of Title VII,

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Plaintiff must establish: (a) he belonged to a protected class; (b) he was qualified for his job; (c) he

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was subjected to adverse employment action; and (d) similarly situated employees not in his

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protected class received more favorable treatment. Moran v. Selig, 447 F.3d 748, 753 (9th Cir.

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2006) (citing Kang v. U. Lim Am., Inc., 296 F.3d 810, 818 (9th Cir. 2002)). Plaintiff generally

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alleges that Defendant Union negligently and willfully refused to take necessary action to stop

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discrimination, harassment, and unequal treatment of Plaintiff by his employer. He also claims that

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Defendant Union wrongfully disregarded the grievance he filed to protest his discharge. Such an

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allegation does provide sufficient facts to identify an unlawful employment practice of a labor

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organization as defined in Title VII. 42 U.S.C. § 2000e-2(c). In particular, Plaintiff does not allege

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that Defendant Union discriminated against Plaintiff in a membership practice. He also does not

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specify how Defendant Union caused his prior employer to discriminate against him. Furthermore,

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Plaintiff does not allege any specific conduct that the Union engaged in to alter his work

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conditions. In addition, the Court notes that the same discrimination, retaliation, and hostile work

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environment claims alleged in this complaint have been filed against Plaintiff’s prior employer,

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Smith’s Food and Drug Store, after the Plaintiff was given leave to amend his complaint. See 2:12-

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cv-00122-GMN-GWF (#9). Consequently, the Court finds that Plaintiff failed to plead facts

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sufficient to support discrimination, retaliation, and hostile work environment claims under Title

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VII against Defendant Union.

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Similarly, Plaintiff has not provided adequate factual support for his intentional infliction of
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emotional distress claim. To state a claim for intentional infliction of emotional distress, a plaintiff

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must establish “(1) extreme and outrageous conduct with either the intention of, or reckless

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disregard for, causing emotional, (2) the plaintiff’s having suffered severe or extreme emotional

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distress and (3) actual or proximate causation.” Dillad Dep’t Stores, Inc. v. Beckwith, 115 Nev.

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372 (1999) (quoting Star v. Rabello, 97 Nev. 124 (1981)). “[E]xtreme and outrageous conduct is

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that which is outside all possible bounds of decency and is regarded as utterly intolerable in a

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civilized community.” Maduike v. Agency Rent-A-Car, 114 Nev. 1 (1998) (internal quotation

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marks and citation omitted). “The Court determines whether the defendant’s conduct may be

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regarded as extreme and outrageous so as to permit recovery, but, where reasonable people may

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differ, the jury determines whether the conduct was extreme and outrageous enough to result in

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liability.” Chehade Rafai v. Lazaro, 614 F.Supp.2d 1103, 1121 (D. Nev. 2009) (citing Norman v.

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Gen. Motors Corp., 628 F.Supp. 702, 704-04 (D. Nev. 1986). The Court finds that Plaintiff failed

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to plead facts sufficient to support a claim for intentional infliction of emotional distress against

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Defendant Union.

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Accordingly, because Plaintiff has not provided sufficient factual support for his claims, the

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complaint must be dismissed. The dismissal will be without prejudice to Plaintiff and he may

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amend his complaint to include sufficient factual allegations to support his claims.

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Based on the foregoing and good cause appearing therefore,

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IT IS HEREBY ORDERED that Plaintiff’s application to proceed in forma pauperis is

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granted. Plaintiff shall not be required to pay the filing fee of three hundred fifty dollars

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($350.00). Plaintiff is permitted to maintain this action to conclusion without the necessity of

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prepayment of any additional fees or costs or the giving of a security therefor. This Order granting

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leave to proceed in forma pauperis shall not extend to the issuance of subpoenas at the

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government’s expense.

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IT IS FURTHER ORDERED that the Clerk of the Court shall file Plaintiff’s Complaint.

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IT IS FURTHER ORDERED that the Complaint is dismissed without prejudice for

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failure to state a claim upon which relief can be granted, with leave to amend. Plaintiff will have

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thirty (30) days from the date that this Order is entered to file an amended complaint correcting the

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noted deficiencies. Failure to comply with this Order may result in the Court recommending that

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this action be dismissed.

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DATED this 21st day of August, 2012.

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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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