Harris v. Walgreens
Filing
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ORDER Granting 1 Plaintiff's Motion/Application for Leave to Proceed in forma pauperis. Plaintiff shall not be required to pay the filing fee of $350.00. IT IS FURTHER ORDERED that the Clerk of the Court shall file Plaintiffs Complaint. The Complaint is DISMISSED without prejudice for failure to state a claim upon which relief can be granted, with leave to amend. Amended Complaint deadline: 1/3/2013. Signed by Magistrate Judge Carl W. Hoffman on 12/04/2012. (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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BRENDA HARRIS,
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Plaintiff,
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vs.
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WALGREENS,
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Defendant.
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__________________________________________)
Case No. 2:12-cv-02045-RCJ-CWH
ORDER
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This matter is before the Court on Plaintiff’s Application to Proceed in Forma Pauperis
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(#1), filed on November 29, 2012.
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I.
In Forma Pauperis Application
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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 screen Plaintiff’s complaint.
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II.
Screening the 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 § 1915(a). Federal courts are given the authority dismiss a case if the action
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is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks
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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). When
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a court dismisses a complaint under § 1915(a), the plaintiff should be given leave to amend the
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complaint with directions as to curing its deficiencies, unless it is clear from the face of the
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complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70
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F.3d 1103, 1106 (9th Cir. 1995).
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Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint
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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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A.
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Pursuant to 28 U.S.C. § 1332, federal district courts have original jurisdiction over civil
Diversity Jurisdiction
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actions in diversity cases “where the matter in controversy exceeds the sum or value of $75,000”
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and where the matter is between “citizens of different states.” According to Plaintiff’s complaint
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she is a citizen of Nevada. Plaintiff has not alleged sufficient facts to determine the citizenship of
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Defendant nor the amount of damages she is seeking. Therefore, the Court finds that Plaintiff has
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not invoked the court’s diversity jurisdiction pursuant to 28 U.S.C. § 1332.
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B.
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As a general matter, federal courts are courts of limited jurisdiction and possess only that
Federal Question Jurisdiction
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power authorized by the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004).
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Pursuant to 28 U.S.C. § 1331, federal district courts have original jurisdiction over “all civil actions
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arising under the Constitution, laws, or treaties of the United States.” “A case ‘arises under’ federal
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law either where federal law creates the cause of action or ‘where the vindication of a right under
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state law necessarily turn[s] on some construction of federal law.’” Republican Party of Guam v.
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Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir. 2002) (quoting Franchise Tax Bd. v. Construction
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Laborers Vacation Trust, 463 U.S. 1, 8-9 (1983)). The presence or absence of federal-question
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jurisdiction is governed by the “well-pleaded complaint rule.” Caterpillar, Inc. v. Williams, 482
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U.S. 386, 392 (1987). Under the well-pleaded complaint rule, “federal jurisdiction exists only
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when a federal question is presented on the face of the plaintiff’s properly pleaded complaint.” Id.
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1.
Section 1983 Claim
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Plaintiff filed her Complaint on the court’s civil rights complaint form for actions pursuant
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to Title 42 U.S.C. § 1983. The substance of Plaintiff’s allegations reveals, however, that she is not
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alleging a civil rights violation under Section 1983. Section 1983 “provides a remedy to
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individuals whose constitutional rights have been violated by persons acting under color of state
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law.” Burke v. Cnty. of Alameda, 586 F.3d 725, 731 (9th Cir. 2009) (quoting Caballero v. City of
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Concord, 956 F.2d 204, 206 (9th Cir. 1992)). To sustain an action under Section 1983, a plaintiff
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must prove that (1) the defendant acted under color of state law; and (2) the conduct deprived the
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plaintiff of a right secured by the Constitution or laws of the United States. See Johnson v.
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Knowles, 113 F.3d 1114 (9th Cir. 1997). Plaintiff has not alleged that Defendant acted under color
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of state law nor has she otherwise alleged any state action in the Complaint. Rather, the Complaint
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alleges that Plaintiff’s former employer, a private actor, discriminated against her and ultimately
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terminated her employment because of her race, disability, and age. See Blum v. Yaretsky, 457 U.S.
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991, 1002-12 (1982) (private persons who are not government officials may be sued under § 1983,
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but they and their actions must be very closely tied to the government in order to be considered
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“acting under color of state law”). Accordingly, Plaintiff has failed to state a cognizable claim
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under Section 1983.
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2.
Title VII, ADA, and ADEA Claims
The Court finds that Plaintiff’s Complaint could be construed as attempting to state a claim
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for race discrimination and hostile work environment under Title VII of the Civil Rights Act (“Title
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VII”), 42 U.S.C. § 2000e et seq., age discrimination in violation of the Age Discrimination in
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Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., and disability discrimination and
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hostile work environment in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C.
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§ 12101 et. seq. Claims under these statutes invoke the Court’s federal-question jurisdiction
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pursuant to 28 U.S.C. § 1331. However, because Plaintiff failed to properly identify these statutes,
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the Court will grant her leave to file an Amended Complaint with properly labeled causes of action
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and sufficient facts to support a claim upon which relief can be granted.
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i.
Title VII Claims
Title VII allows an individual to sue an employer for discrimination on the basis of race,
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color, religion, gender or national origin if she has exhausted both state and EEOC administrative
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procedures. Once a plaintiff files charges with the EEOC, it will investigate the charges, attempt to
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reach a settlement, and decide whether to sue the employer or refer the decision to sue to the
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Attorney 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, the
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EEOC will issue plaintiff a right-to-sue letter and plaintiff will have exhausted her remedies with
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the EEOC. See 42 U.S.C. § 2000e-5(f)(1). After receipt of the right-to-sue letter, plaintiff may sue
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in federal or state court. Id.; see also Yellow Freight Sys., Inc. v. Donenelly, 494 U.S. 820, 825-26,
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110 S.Ct. 1566, 108 L.Ed.2d 834 (1990). Plaintiff received a right to sue letter on September 10,
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2012 and filed this action within 90 days of its receipt. Thus, it appears as though Plaintiff has
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exhausted her administrative remedies.
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In order to prove a prima facie case of race discrimination in violation of Title VII, Plaintiff
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must establish the following: (a) she belonged to a protected class; (b) she was qualified for the
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position; (c) she was subject to an adverse employment action; and (d) similarly situated employees
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not in her protected class received more favorable treatment. Moran v. Selig, 447 F.3d 748, 753
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(9th Cir. 2006) (citing Kang v. U. Lim Am., Inc., 296 F.3d 810, 818 (9th Cir.2002)). Plaintiff may
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also provide direct evidence of the discrimination. See Vasquez v. County of Los Angeles, 349 F.3d
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634, 641 (9th Cir. 2003). Plaintiff alleges that is she is a black female who was subjected to racial
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remarks and was not allowed to transfer to another store location until eventually being terminated.
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She also alleges that other employees were given more favorable shifts including a white female.
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However, Plaintiff failed to state how she was qualified for her position.
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Similarly, in order to put forth a prima facie case for hostile work environment in violation
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of Title VII, a plaintiff must show that (a) she was subjected to verbal or physical conduct of a
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racial or sexual nature, (b) that conduct was unwelcome, and (c) the conduct was sufficiently severe
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or pervasive to alter the conditions of her employment and created an abusive work environment.
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See Vasquez v. Cty. of Los Angeles, 349 F.3d 634 (9th Cir. 2003). Plaintiff alleges that her co-
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workers tampered with her food, took items she purchased, and engaged in unwelcome contact with
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her. Plaintiff failed to state the dates these incidents occurred and establish how pervasive the
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conduct was to alter the conditions of her employment. The Court will therefore grant Plaintiff
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leave to amend her complaint to allege facts sufficient to state claims for racial discrimination and
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hostile work environment.
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ii.
ADA Claim
Additionally, the ADA prohibits discrimination against people with recognized disabilities
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under 42 U.S.C. § 12102. Like Title VII, the ADA requires a plaintiff to exhaust both state and
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Equal Employment Opportunity Commission (“EEOC”) administrative procedures. Section
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12112(b) provides that refusal to make reasonable accommodation for disability, absent a showing
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of undue hardship by the employer, constitutes discrimination. It also prohibits retaliation in the
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form of adverse employment action resulting from requests for such accommodation. Further,
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Section 12117 provides for enforcement through the EEOC or through a private civil action. In
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order to prove a prima facie claim under the ADA, a plaintiff must show that: (a) she is disabled
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within the meaning of the ADA; (b) she is qualified to perform the essential functions of her
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position with or without a reasonable accommodation; and (c) she suffered an adverse employment
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action because of her disability. See Allen v. Pacific Bell, 348 F.3d 1113, 1114 (9th Cir. 2003); see
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also U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 396 (2002). Under the ADA, “disability” is
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defined as: “(a) physical or mental impairment that substantially limits one or more of the major
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life activities of such individual; (b) a record of such impairment; or (c) being regarded as having
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such impairment.” Id. Plaintiff’s Complaint fails to allege sufficient facts to state a claim for
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disability discrimination under the ADA as she does not identify her disability and why she
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believes she was terminated because of that disability.
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Further, to state a prima facie case of a hostile work environment based on a disability, a
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plaintiff must show that: (1) she is member of protected class, i.e., a “qualified individual with a
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disability,” (2) she was subjected to unwelcome harassment, (3) harassment occurred because of
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her disability, (4) harassment affected term, condition, or privilege of employment, and (5)
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employer knew or should have known of harassment, but took no action to prevent it. See 42
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U.S.C. §§ 12101–17. As noted above, Plaintiff has not alleged that she is disabled as defined by
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Section 12102. The Court will therefore grant Plaintiff leave to amend her complaint to allege facts
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sufficient to state a claim for disability discrimination and hostile work environment.
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iii.
ADEA Claim
Finally, the ADEA prohibits discrimination against employees who are age 40 and over
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because of their age. Diaz v. Eagle Produce Ltd. Partnership, 521 F.3d 1201 (9th Cir.2008). In
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order to establish a prima facie case of age discrimination, plaintiff must establish that she is: (a) at
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least forty years old; (b) performed her job satisfactorily; (c) was discharged; and (d) either replaced
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by substantially younger employees with equal or inferior qualifications or discharged under
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circumstances otherwise giving rise to an inference of age discrimination. Id. Plaintiff’s
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Complaint indicates that she is 58 years-old. She alleges that Defendant discriminated against her
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based on age by assigning her undesirable work assignments that younger coworkers were not
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assigned to do. However, Plaintiff fails to provide factual information indicating that she was
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replaced by a substantially younger employee or discharged for reasons that infer age
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discrimination. The Court will therefore grant Plaintiff leave to amend her complaint to allege
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facts sufficient to state a claim for age discrimination.
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In conclusion, because Plaintiff has failed to properly state her causes of action and provide
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sufficient factual support, her Complaint must be dismissed. The dismissal will be without
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prejudice to Plaintiff and she may amend her complaint to include adequate factual allegations to
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support her claims. If Plaintiff elects to proceed by filing an amended complaint, she is informed
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that the Court cannot refer to a prior pleading to make her amended complaint complete. Local
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Rule 15-1 requires that an amended complaint be complete in itself without reference to any prior
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pleading. This is because, as a general rule, an amended complaint supersedes the original
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complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th cir. 1967). Therefore, in an amended
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complaint, each claim, and the involvement of the defendant, must be sufficiently alleged.
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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 government
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expense.
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IT IS FURTHER ORDERED that the Clerk of the Court shall file Plaintiff’s Complaint
(#1-1).
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 4th day of December, 2012.
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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge
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