Guinn v. Yellow Checker Star, Inc.

Filing 2

ORDER Granting 1 Motion/Application for Leave to Proceed in forma pauperis. Plaintiff shall not be required to pre-pay the full filing fee of $400.00. Plaintiff's Complaint is dismissed without prejudice with leave to amend. Plaintiff has until 8/6/2015 to file an Amended Complaint. Signed by Magistrate Judge George Foley, Jr on 7/7/2015. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BERNADETTE GUINN,

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Plaintiff,
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vs.
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YELLOW CHECKER STAR, INC.,
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Defendant.
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__________________________________________)

Case No. 2:15-cv-00344-APG-GWF
ORDER

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This matter is before the Court on Plaintiff’s Motion for Leave to Proceed in Forma

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Pauperis (#1), filed on February 26, 2015.

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BACKGROUND

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Plaintiff alleges that the Defendant violated Title VII of the Civil Rights Act of 1964, the

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Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and the Age

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Discrimination Act in Employment Act. Plaintiff claims Defendant engaged in a pattern of

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discrimination against Plaintiff that eventually resulted in Plaintiff’s termination.

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DISCUSSION
I.

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Application to Proceed In Forma Pauperis
Plaintiff filed this instant action and attached a financial affidavit to her application and

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complaint as required by 28 U.S.C. § 1915(a). Reviewing Plaintiff’s financial affidavit pursuant to

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28 U.S.C. § 1915, the Court finds that Plaintiff is unable to pre-pay the filing fee. As a result,

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Plaintiff's request to proceed in forma pauperis in federal court is granted.

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II.

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

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 dismissed

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as frivolous if it is premised on a nonexistent legal interest or delusional factual scenario. Neitzke

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

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appropriate when the facts alleged rise to the level of the irrational or the wholly incredible,

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whether or not there are judicially noticeable facts available to contradict them.” Denton v.

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Hernandez, 504 U.S. 25, 33 (1992). When a court dismisses a complaint under § 1915(e), the

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plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies,

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unless it is clear from the face of the complaint that the deficiencies could not be cured by

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

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The Court shall liberally construe a complaint by a pro se litigant. Eldridge v. Block, 832

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F.2d 1132, 1137 (9th Cir. 2007). This is especially important for civil rights complaints. Ferdik v.

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Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, a liberal construction may not be used to

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supply an essential element of the claim absent from the complaint. Bruns v. Nat’l Credit Union

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Admin., 12 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Board of Regents, 673 F.2d 266, 268

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(9th Cir. 1982)).

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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, 129 S.Ct. 1937, 1949 (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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129 S.Ct. at 1950. Mere recitals of the elements of a cause of action, supported only by conclusory

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allegations, do not suffice. Id. at 1949. 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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III.

Instant Complaint

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A. Race and Gender Discrimination

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Plaintiff alleges discrimination under Title VII of the Civil Rights Act of 1964. Plaintiff

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offers few details of the alleged discrimination, but claims it “included harassment, sexual

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harassment, false accusations of misconduct, forgery, and fraud.” Plaintiff offers no further details,

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and does not offer any basis for the discrimination. Therefore, the Court will dismiss the

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discrimination claim for failure to state a claim upon which relief can be granted. Assuming that

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the Plaintiff intended to state a claim for race or gender discrimination, she would be required to

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plead sufficient facts to establish a prima facie case of discrimination. The harassment claims will

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be addressed separately.

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A claim of discrimination requires that the plaintiff make a prima facie showing of

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discrimination before shifting the burden to the defendant to articulate a legitimate reason for the

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employer’s behavior, which would finally shift the burden back to the plaintiff to show that the

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given reason is a pretext offered by the employer to conceal the discriminatory purpose. See

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Norton v. PHC-Elko, Inc., 2014 WL 4635935 at *3. (D. Nev. 2014) citing McDonnell Douglas

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Corp. v. Green, 411 U.S. 792 (1973). A prima facie case of race or gender discrimination requires

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a showing that the plaintiff was (1) a member of a protected class, (2) performing according to the

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employer’s legitimate expectations, (3) suffered an adverse employment action, and (4) similarly

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situated employees outside her protected class were treated more favorably. See Pulliam v. United

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Airlines, Inc., 2012 WL 3025087 at *3 (D. Nev. 2012), aff’d 585 F. App’x. 408 (9th Cir. 2014);

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McDonnell Douglas Corp v. Green, 411 U.S. 792, 802 (1973). Because Plaintiff offered no facts

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to support her discrimination claim, this claim has not been properly pled. However, the Court
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cannot conclude that the Plaintiff could never properly plead her discrimination claim. Therefore,

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the Plaintiff’s discrimination claim will be dismissed with leave to amend.

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B. Americans with Disabilities Act

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In the first paragraph of Plaintiff’s Complaint, titled “Jurisdiction,” she indicates that she

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will be bringing a claim under the Americans with Disabilities Act (ADA). Plaintiff does not offer

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any details about a potential claim under the ADA in the rest of the complaint. The ADA prohibits

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certain employers from discriminating against individuals on the basis of their disabilities. 42

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U.S.C. § 12112(a). To qualify for relief under the ADA, Plaintiff must show that “(1) she is a

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disabled person within the meaning of the statute; (2) she is qualified, with or without reasonable

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accommodation, to perform the essential functions of the job she holds or seeks; and (3) that she

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suffered an adverse employment action because of her disability.” Puckett v. Park Place Entm’t

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Corp., 332 F.Supp.2d 1349, 1352 (D. Nev. 2004) (citing Braunling v. Countrywide Home Loans,

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Inc., 220 F.33d 1154, 1156 (9th Cir. 2000)). Plaintiff does not indicate in her complaint that she is

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disabled or what discrimination she was subjected to because of her alleged disability. Plaintiff

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also does not argue that she was qualified to perform the essential functions of her job. The

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Plaintiff has not properly pled a claim for disability discrimination, but the Court cannot conclude

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that she could never properly plead this claim. The Court will therefore dismiss Plaintiff’s

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disability discrimination claim with leave to amend.

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C. Age Discrimination

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Plaintiff alleges that the Defendant discriminated against her based on her age, in violation

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of the Age Discrimination in Employment Act (ADEA). To establish a prima facie case of age

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discrimination, the Plaintiff must show that (1) she is at least 40 years of age, (2) she was

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performing her job satisfactorily, (3) she was fired, and (4) she was replaced by substantially

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younger employees with equal or inferior qualifications or discharged under circumstances that

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give rise to an inference of age discrimination. U.S. E.E.O.C. v. Republic Services, Inc., 640

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F.Supp.2d 1267 (D. Nev. 2009) (citing Diaz v. Eagle Produce Ltd. Partnership, 521 F.3d 1201,

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1207 (9th Cir. 2008)). Plaintiff does not list her age in the complaint, and does not discuss her own

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job performance. Plaintiff does allege that she was fired, but offers no evidence that her job was
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given to a younger employee. Plaintiff has failed to properly plead a claim for age discrimination,

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but the Court cannot conclude that she could never properly plead this claim. Therefore, the Court

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will dismiss this claim with leave to amend.

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D. Harassment

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Plaintiff states that she suffered from both harassment and sexual harassment. Because the

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Plaintiff alleges that the Defendant’s actions were constituted a “sustained pattern of

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discrimination,” the Court interprets Plaintiff’s claim as one for hostile work environment based on

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race and sexual harassment. Sexual harassment claims may also be pled as quid pro quo

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harassment. Vandermeer v. Douglas County, 15 F.Supp.2d 970, 979 (D. Nev. 1998). The Court

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will analyze the Plaintiff’s claims under both categories of sexual harassment.

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In order to properly plead a hostile work environment claim, the Plaintiff must show that

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she was (1) subjected to verbal or physical conduct of a sexual nature or because of race; (2) that

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the conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the

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conditions of employment and create an abusive work environment. Brophy v. Day & Zimmerman

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Hawthorne Corp., 799 F.Supp.2d 1185, 1193 (D. Nev. 2011). Plaintiff offers no facts to support a

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claim for hostile work environment: she does not detail any conduct directed at her that was

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unwelcome, and she does not allege that the conduct was sufficiently severe or pervasive to create

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an abusive work environment. The claim for hostile work environment is not properly pled.

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To properly plead a quid pro quo sexual harassment claim, the Plaintiff must show that “an

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individual explicitly or implicitly condition[ed] a job, a job benefit, or the absence of a job

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detriment, upon an employee’s acceptance of sexual conduct.” Heyne v. Caruso, 69 F.3d 1475,

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1478 (9th Cir. 1995) (quoting Nichols v. Frank, 42 F.3d 503, 511 (9th Cir. 1994)). Plaintiff makes

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no such allegations. This claim has also not been properly pled, but the Court cannot conclude that

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the Plaintiff could never properly plead a harassment claim. Therefore, the Plaintiff’s harassment

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claim 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 informed

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

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Local Rule 15–1 requires that an amended complaint be complete in itself without reference to any
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prior 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). Once Plaintiff files an amended

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

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

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must be sufficiently alleged. Accordingly,

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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 pre-pay the full filing fee of four hundred dollars

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($400.00).

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IT IS FURTHER ORDERED that Plaintiff is permitted to maintain this action to

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conclusion without the necessity of prepayment of any additional fees or costs or the giving of

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security therefor. This Order granting leave to proceed in forma pauperis shall not extend to the

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issuance of subpoenas at government expense.

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IT IS FURTHER ORDERED that Plaintiff’s Complaint be dismissed without prejudice

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with leave to amend. Plaintiff shall have until August 6, 2015 to file an amended complaint

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correcting the noted deficiencies.

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DATED this 7th day of July, 2015.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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