Crawford v. Smith's Food and Drug Store Inc

Filing 9

ORDER that Plaintiff's Complaint is dismissed without prejudice with leave to amend by 4/9/12. IT IS FURTHER ORDERED that 5 Plaintiff's Motion for Delivery of Complaint and Summons is DENIED. IT IS FURTHER ORDERED that 7 Plaintiff's Motion for Leave to Supplement Complaint is DENIED. Signed by Magistrate Judge George Foley, Jr on 3/8/12. (Copies have been distributed pursuant to the NEF - EDS)

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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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SMITH’S FOOD AND DRUG
STORE, et. al.,

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Defendant,
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2:12-cv-00122-GMN-GWF
ORDER
Screening of Complaint (#1-1)
Motion for Service (#5)
Motion for Leave to Supplement (#7)

This matter comes before the Court on the screening of Plaintiff’s Complaint (#1-1), filed

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on January 23, 2012; Plaintiff’s Motion for Service of Complaint and Summons (#5), filed on

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February 7, 2012; and Plaintiff’s Motion for Leave to File Supplement Complaint (#7), filed on

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February 24, 2012. On February 3, 2012, the Court granted Plaintiff’s Application to Proceed in

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Forma Pauperis (#1) and set a status hearing. (See #3.) On March 8, 2012, the Court conducted a

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status hearing on this matter.

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BACKGROUND
Plaintiff alleges claims for intentional infliction of emotion and mental distress, undue

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harassment, racial discrimination, age discrimination, sexual discrimination, wage

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discrimination, defamation, degradation of character, humiliation, laceration of feelings,

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retaliation for engaging in protected activity, wrongful retaliatory discharge and compensatory

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damages. Plaintiff claims that he made verbal and written complaints of food safety concerns,

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race discrimination, age discrimination, wage discrimination, gender discrimination, harassment,

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unequal treatment, not receiving scheduled breaks, and being held to a higher standard than other

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individuals. Plaintiff alleges that Defendant ignored his concerns and failed to take any action to

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correct their behavior. Plaintiff further claims that because he expressed these concerns, Plaintiff

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was subjected to a hostile work environment, was retaliated against and ultimately discharged for

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filing a complaint with the Equal Employment Opportunity Commission (EEOC).

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Plaintiff further claims that Defendant granted Plaintiff time off due to a family crisis, but

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then subsequently reprimanded Plaintiff for “excessive absenteeism.” Plaintiff alleges that this

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reprimand was used to support his termination. Additionally, Plaintiff claims that Bob Day,

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Personnel Director, and Peter Barth, Vice President, willfully denied Plaintiff the right to appeal

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his termination. As a result, Plaintiff requests $426,800.00 in compensatory damages and

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$10,000,000.00 in punitive damages.

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DISCUSSION
A.

Screening of Complaint

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Upon granting a request to proceed in forma pauperis, a court must additionally screen a

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complaint pursuant to 28 U.S.C. § 1915(e). Specifically, federal courts are given the authority to

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dismiss a case if the action is legally “frivolous or malicious,” fails to state a claim upon which

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relief may be granted, or seeks monetary relief from a Defendant/Third Party Plaintiff who is

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immune from such relief. 28 U.S.C. § 1915(e)(2). A complaint, or portion thereof, should be

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dismissed for failure to state a claim upon which relief may be granted “if it appears beyond a

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doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to

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relief.” Buckey v. Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). A complaint may be

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dismissed as frivolous if it is premised on a nonexistent legal interest or delusional factual

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scenario. Neitzke v. Williams, 490 U.S. 319, 327–28 (1989). Moreover, “a finding of factual

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frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly

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incredible, whether or not there are judicially noticeable facts available to contradict them.”

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Denton v. Hernandez, 504 U.S. 25, 33 (1992). When a court dismisses a complaint under §

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1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing

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its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be

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cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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It appears Plaintiff is attempting to state a claim for discrimination and retaliation under

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Title VII of the Civil Rights Act. See 42 U.S.C. § 2000e et seq. Title VII allows persons to sue

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an employer for discrimination on the basis of race, color, religion, gender or national origin if he

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or she has exhausted both state and EEOC administrative procedures. Once plaintiff files

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charges with the EEOC, the commission will investigate the charges, attempt to reach a

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settlement, and decide whether to sue the employer or refer the decision to sue to the Attorney

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General if the charges are against a state or local governmental entity. Id. If the EEOC or

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Attorney General decides not to sue and if there is no settlement that is satisfactory to plaintiff,

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the EEOC will issue plaintiff a right-to-sue letter and plaintiff will have exhausted his remedies

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

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may sue in federal or state court. Id.; see also Yellow Freight Sys., Inc. v. Donenelly, 494 U.S.

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820, 825-26, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990). Here, Plaintiff has attached a right to sue

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letter from the EEOC 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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I.

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In order to prove a prima facie case of discrimination in violation of Title VII, Plaintiff

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

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subjected to an 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 appears to

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be alleging racial discrimination, age discrimination, sex discrimination and wage discrimination.

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Plaintiff however failed to allege facts sufficient to support any claim of discrimination. For each

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claim of discrimination, Plaintiff must meet all the requirements listed above. For example, to

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allege racial discrimination, Plaintiff must identify his race, establish that he belongs to a

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protected class, prove that he was qualified for his job, explain the specific adverse employment

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action he was subjected to, and provide facts to support that similarly situated employees that are

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not part of his protected class received more favorable treatment. Plaintiff must then allege the

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same for his claim of age discrimination, wage discrimination and sex discrimination. The Court

Discrimination Claim

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will therefore grant Plaintiff leave to amend his complaint in accordance with the above

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discussion.

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II.

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It appears Plaintiff is also attempting to state a claim for retaliation. Title VII prohibits,

Retaliation Claim

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among other things, retaliation against an employee for filing a discrimination charge or

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otherwise participating in a Title VII proceeding. See 42 U.S.C. § 2000e–3(a); Nilsson v. City of

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Mesa, 503 F.3d 947, 944 (9th Cir.2007). “In order to establish a prima facie case of retaliation,

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the plaintiff must demonstrate that (1) he had engaged in a protected activity;” (2) the Defendants

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subjected him “to an adverse employment action; and (3) a causal link existed between the

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protected activity and the adverse employment action.” Porter v. California Dept. of Corrections,

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419 F.3d 885, 894 (9th Cir.2005). If the plaintiff “provides sufficient evidence to show a prima

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facie case of retaliation, the burden then shifts to the [Defendants] to articulate a legitimate,

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non-retaliatory reason for [their] actions.” Id. (citation omitted). If the Defendants set forth such

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a reason, Plaintiff “bears the ultimate burden of submitting evidence indicating that the

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[defendant’s] proffered reason is merely a pretext for a retaliatory motive.” Id. (citation omitted).

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Plaintiff's complaint alleges that he made several verbal and written complaints to

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management, and that management failed to take any action to address Plaintiff’s concerns.

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Plaintiff further claims that he was retaliated against and discharged because he filed a complaint

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with the EEOC. Taking these allegations as true and viewing them in the light most favorable to

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the Plaintiff, the Court finds Plaintiff’s complaint sufficiently alleges a claim for retaliation.

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III.

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It also appears that Plaintiff is attempting to state a claim for hostile work environment

Hostile Work Environment Claim

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under Title VII. In order to prove a primia facie case of a hostile work environment in violation

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of Title VII, Plaintiff must show: (a) that he was subjected to verbal or physical conduct; (b) that

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this conduct was unwelcome; and (c) that the conduct was sufficiently severe or pervasive to

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alter the conditions of the victim's employment and create an abusive working environment.

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Manatt v. Bank of America, NA, 339 F.3d 792, 798 (9th Cir.2003) ( citing Kang v. Lim Am., Inc.,

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296 F.3d 810, 817 (9th Cir.2002). Here, Plaintiff simply alleges that he was subjected to a
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hostile work environment, but fails to allege any specific verbal or physical conduct that altered

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his working conditions and created a hostile environment. The Court will therefore grant

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Plaintiff leave to amend his hostile work environment claim to allege facts specific to support

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such a claim.

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IV.

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Plaintiff also alleges a claim of defamation. “A defamation claim requires demonstrating

Defamation Claim

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(1) a false and defamatory statement of fact by the defendant concerning the plaintiff; (2) an

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unprivileged publication to a third person; (3) fault, amounting to at least negligence; and (4)

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actual or presumed damages.” Pope v. Motel 6, 114 P.3d 277, 282 (Nev.2005). Truth, however,

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is a complete defense to defamation. See Pegasus v. Reno Newspapers, Inc., 57 P.3d 82, 88

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(Nev.2002). Plaintiff fails to allege any facts to support a defamation claim. The Court will

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therefore grant Plaintiff leave to amend his complaint.

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V.

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It appears Plaintiff may also be attempting to allege a claim of intentional infliction of

Intentional Infliction of Emotional Distress Claim

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emotional distress. To state a claim for intentional infliction of emotional distress the 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 distress, (2) the plaintiff's having suffered severe or extreme

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emotional distress, and (3) actual or proximate causation.” Dillard Dep't Stores, Inc. v. Beckwith,

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115 Nev. 372, 989 P.2d 882, 886 (1999) (quoting Star v. Rabello, 97 Nev. 124, 625 P.2d 90, 92

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(1981)). “[E]xtreme and outrageous conduct is that which is outside all possible bounds of

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decency and is regarded as utterly intolerable in a civilized community.” Maduike v. Agency

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Rent–A–Car, 114 Nev. 1, 953 P.2d 24, 26 (1998) (internal quotation marks and citation omitted).

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“The Court determines whether the defendant's conduct may be regarded as extreme and

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outrageous so as to permit recovery, but, where reasonable people may differ, the jury determines

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whether the conduct was extreme and outrageous enough to result in liability.” Chehade Refai v.

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Lazaro, 614 F.Supp.2d 1103, 1121 (D.Nev.2009) (citing Norman v. Gen. Motors Corp., 628

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F.Supp. 702, 704–05 (D.Nev.1986)). The Court finds that Plaintiff failed to plead facts sufficient

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to support an intentional infliction of emotional distress claim. Even if the Court were to
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consider Plaintiff’s alleged wrongful termination as extreme or outrageous conduct, Plaintiff

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failed to allege that he suffered any severe or emotional distress as a result of that conduct. The

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Court will therefore grant Plaintiff leave to amend his complaint.

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If Plaintiff elects to proceed in this action by filing an amended complaint, he is informed

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that the court cannot refer to a prior pleading in order to make his amended complaint complete.

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Local Rule 15–1 requires that an amended complaint be complete in itself without reference to

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any prior pleading. This is because, as a general rule, an amended complaint supersedes the

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original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.1967). Once Plaintiff files an

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amended complaint, the original pleading no longer serves any function in the case. Therefore, in

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an amended complaint, as in an original complaint, each claim and the involvement of each

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defendant must be sufficiently alleged.

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B.

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Motion for Delivery of Complaint and Summons (#5)
On February 7, 2012, Plaintiff filed a motion, requesting the Court serve the Defendants

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in this action. Plaintiff’s request is premature. Plaintiff’s complaint must first be screened

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pursuant to 28 U.S.C. §1915 and then filed with the Court. After the complaint has been filed,

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then Defendants can be served with the summons and complaint. Upon the final screening of

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Plaintiff’s complaint, the Court will provide Plaintiff with further instructions to complete

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service on Defendants. Plaintiff’s motion is therefore denied.

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C.

Motion for Leave to Supplement Complaint (#7)

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Plaintiff further requests the Court grant him leave to attach an additional EEOC Notice

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of Rights to his original complaint, which he inadvertently forgot to attach. The Court will not

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grant Plaintiff leave to attach this additional document to his original complaint because the

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Court is dismissing Plaintiff’s complaint with leave to amend. Rather, the Court instructs

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Plaintiff to attach this document and any other documents that support Plaintiff’s claims to his

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amended complaint. Accordingly,

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IT IS HEREBY ORDERED that the Plaintiff’s Complaint (#1-1) is dismissed without

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prejudice with leave to amend. Plaintiff shall have until Monday, April 9, 2012, to correct the

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noted deficiencies and file a complete amended complaint.
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IT IS FURTHER ORDERED that Plaintiff’s Motion for Delivery of Complaint and
Summons (#5) is denied.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to Supplement
Complaint (#7) is denied.
DATED this 8th day of March, 2012.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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