Shepard v. Marathon Staffing, Inc.

Filing 3

ORDER Granting 2 Motion/Application for Leave to Proceed in forma pauperis. Clerk of Court shall file the Complaint. Plaintiff shall have until 7/2/14, to file amended complaint. Signed by Magistrate Judge Peggy A. Leen on 6/2/14. (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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***

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TANYA C. SHEPARD,

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ORDER

Plaintiff,
v.

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Case No. 2:13-cv-02261-JCM-PAL

(IFP App. - Dkt. #2)
MARATHON STAFFING, INC.,
Defendant.

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Plaintiff Tanya Shepard is proceeding in this action pro se. Plaintiff has requested

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authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis, and she submitted a

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complaint. This matter was referred to the undersigned pursuant to the provisions of 28 U.S.C.

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§ 636(b)(1)(A) and (B) and Local Rule IB 1-3 and 1-4.

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I.

In Forma Pauperis Application.

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Shepard has submitted the affidavit required by § 1915(a) showing that she is unable to

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prepay fees and costs or give security for them. Accordingly, her request to proceed in forma

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

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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 to dismiss a case if the

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action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted,

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or seeks monetary relief from a defendant who is immune from such relief.

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§ 1915(e)(2). When a court dismisses a complaint under § 1915(a), the plaintiff should be given

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leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from

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28 U.S.C

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the face of the complaint that the deficiencies could not be cured by amendment. See Cato v.

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United States, 70 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

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complaint for failure to state a claim upon which relief can be granted. Review under Rule

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12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of

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America, 232 F.3d 719, 723 (9th Cir. 2000). A properly pled complaint must provide a short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2);

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Bell Atlantic Corp. v. Twombley, 550 U.S. 544, 555 (2007). Although Rule 8 does not require

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detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic

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recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)

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

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factual allegations contained in the complaint, but the same requirement does not apply to legal

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conclusions. Iqbal, 129 S.Ct. at 1950. Mere recitals of the elements of a cause of action,

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supported only by conclusory allegations, do not suffice. Id. at 1949. Secondly, where the

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claims in the complaint have not crossed the line from plausible to conceivable, the complaint

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should be dismissed. Twombly, 550 U.S. at 570.

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The complaint was filed on the court’s form civil rights complaint pursuant to 42 U.S.C.

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§ 1983. To state a claim under section 1983, a plaintiff must allege that a right secured by the

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Constitution has been violated, and the deprivation was committed by a person acting under

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color of state law. West v. Atkins, 487 U.S. 42 (1988) (citation omitted). Plaintiff’s complaint

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does not name any state actor or person acting under color of state law as a Defendant. Rather

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Plaintiff’s complaint attempts to state claims for age discrimination in violation of Age

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Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-31, and for race discrimination

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and retaliation under Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. §§ 2000e et seq.

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To the extent Plaintiff is attempting to state a claim under 42 U.S.C. § 1983, that claim is

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dismissed with leave to amend.

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A. Age Discrimination Claim.

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First, Shepard’s complaint alleges age discrimination in violation of the ADEA. In the

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Ninth Circuit, the criteria for claims under Title VII apply to claims of disparate treatment under

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the ADEA. See Metoyer v. Chassman, 504 F.3d 919, 930 (9th Cir. 2007) (citing Fonseca v.

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Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 850 (9th Cir. 2004)). In order to state a claim for

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disparate treatment under the ADEA, a plaintiff must show: (a) that she is a member of a

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protected class; (b) she was qualified for his position; (c) despite her qualifications, she was

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denied the position; and (d) subsequently, the position was filled by someone younger than

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plaintiff. See generally McDonnell Douglas, 411 U.S. 792, 802 (1973); Reeves v. Sanderson

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Plumbing Products, Inc., 530 U.S. 133, 142 (2000).

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A Plaintiff is not required to exhaust her administrative remedies before filing a federal

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claim under the ADEA. See 29 C.F.R. 1613.513 (the filing of a civil action by an employee or

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applicant involving a complaint filed under this subpart terminates processing of that complaint);

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Bak v. Postal Service, 52 F.3d 241, 244 (9th Cir. 1995) (holding the amended regulations [i.e., 29

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C.F.R. 1613.513] eliminate the exhaustion requirement for age discrimination claims).

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Shepard alleges that she was discriminated against because she was over forty years old.

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Specifically, she contends that Marathon Staffing reduced her hours, gave more hours to

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inexperienced workers under age forty, and paid her twenty-five cents less because she had not

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taken a typing test. She contends that she was qualified for the position based on experience and

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a degree in human resources. Plaintiff has stated an age discrimination claim under the ADEA.

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A. Race and Gender Discrimination Claims.

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The Complaint also attempts to state a claim for race discrimination and retaliation under

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

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must allege: (a) she belonged to a protected class; (b) she was qualified for her job; (c) she was

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subjected to an adverse employment action; and (d) similarly situated employees not in her

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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)); see also 42 U.S.C.

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§ 2000e-3(e). Here, Shepard alleges that she was discriminated against because she is African3

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American. She alleges Marathon Staffing replaced her with several white workers who were less

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experienced. She contends she was paid less than white workers. She alleges that Marathon

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Staffing denied her a position in favor of a white employee with less experience. As discussed

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below, it is unclear whether Plaintiff has exhausted her administrative remedies. But for this

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failure, Plaintiff has stated a claim for race discrimination under Title VII.  

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Plaintiff also attempts to assert a retaliation claim under Title VII. To state a prima facie

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case of retaliation in violation of Title VII, Plaintiff must allege: (1) that she committed a

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protected act, such as complaining about discriminatory practices; (2) that she suffered some sort

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of adverse employment action; and (3) there is a causal connection between her action and the

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adverse act. See Davis v. Team Elec Co., 520 F.3d 1080, 1093-94 (9th Cir. 2008). Shepard

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alleges that Marathon Staffing reduced her hours and gave more hours to other inexperienced

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white workers. Plaintiff has not stated a Title VII retaliation claim because she has not alleged

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she was retaliated against because she engaged in a protected activity. For example, under Title

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VII, where an employee opposes an unlawful practice, he or she has engaged in a protected

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activity. Accordingly, Plaintiff’s retaliation claim will be dismissed with leave to amend.

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Title VII allows a plaintiff to sue an employer for discrimination on the basis of race,

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color, religion, gender or national origin if he or she has exhausted both state and Equal

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Employment Opportunity Commission (“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 her 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 (1990). It is unclear whether Shepard has exhausted her administrative remedies.

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On page 8 of the complaint, Shepard checked the box indicating she did not attempt to resolve

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this dispute by seeking relief from the proper administrative officials prior to filing the
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complaint. However, she also indicated the dispute involved the validity of an EEOC right to

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sue letter. Complaint at 8. Because the court cannot tell whether Shepard has exhausted her

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administrative remedies, her Title VII claims will be dismissed with leave to amend.

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If Plaintiff elects to proceed in this action by filing an amended complaint, she is advised

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that the court cannot refer to a prior pleading in order to make Plaintiff’s amended complaint

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complete. Local Rule 15-1 requires that an amended complaint be complete in itself without

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reference to any prior pleading. This is because, as a general rule, an amended complaint

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

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Plaintiff files an amended complaint, the original pleading no longer serves any function in the

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case. Therefore, in an amended complaint, as in an original complaint, each claim must be

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sufficiently alleged. In other words, if Shepard choses to file an amended complaint, she must

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reallege her ADEA claim. If Shepard does not file an amended complaint, the court will direct

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service of the complaint for the ADEA claim once the time for filing an amended complaint has

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run.

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For the foregoing reasons,

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IT IS ORDERED:

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be required to pay the filing fee of four hundred dollars.

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Plaintiff’s request to proceed in forma pauperis is GRANTED. Plaintiff shall not

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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. This Order

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

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subpoenas at government expense.

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3.

The Clerk of Court shall file the Complaint.

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4.

Plaintiff shall have until July 2, 2014, to file her amended complaint, if she

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believes she can correct the noted deficiencies. The amended complaint must be a

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complete document in and of itself, and will supersede the original complaint in

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its entirety. Any allegations, parties, or requests for relief from prior papers that

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are not carried forward in the amended complaint will no longer be before the

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court.

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Plaintiff shall clearly title the amended complaint as such by placing the words

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“FIRST AMENDED COMPLAINT” on page 1 in the caption along with the case

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number, 2:13-cv-02261-JCM-PAL.

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Plaintiff is expressly cautioned that if she does not file an amended complaint, her

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Title VII claims will be dismissed. In that event, the court will direct service of

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the ADEA claim after the time for filing an amended complaint has run.

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Dated this 2nd day of June, 2014

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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