Guinn v. Yellow Checker Star, Inc.

Filing 4

ORDER dismissing 3 Supplement to Complaint and directing Plaintiff to file Amended Complaint no later than November 16, 2015. Signed by Magistrate Judge George Foley, Jr on 10/16/15. (Copies have been distributed pursuant to the NEF - JC)

1
2
3

UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5
6
7
8
9
10

BERNADETTE GUINN,

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

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

11
12
13

This matter is before the Court on Plaintiff’s Supplement to the Complaint (#3), filed on
August 6, 2015.

14

BACKGROUND

15

Plaintiff was instructed by the Court to file an Amended Complaint, as her initial Complaint

16

(#1-1) was dismissed without prejudice. See Order (#2). Plaintiff subsequently filed this

17

Supplement, which the Court will screen as an Amended Complaint. Plaintiff claims that the

18

Defendant is liable for discrimination, defamation, slander, negligent infliction of emotional

19

distress, and harassment.

20

I.

21

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

22

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

23

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

24

relief may be granted, or seeks monetary relief from a defendant/third party plaintiff who is

25

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

26

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

27

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

28

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

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

(9th Cir. 1982).

15

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint

16

for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

allegations, do not suffice. Id. at 1949. Secondly, where the claims in the complaint have not

27

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

28

U.S. at 570.
2

1

II.

Instant Complaint

2

A. Discrimination

3

Plaintiff alleges that the Defendant is liable for discrimination for “not following their own

4

policy/procedure of providing notification to employees of renewal requirements and deadlines.”

5

Supplement (#3), p.2. She believes that they discriminated against her based on “health, age, and

6

gender related issues.” Id. Plaintiff is required to establish a prima facie case of discrimination

7

before the burden shifts to the Defendant to articulate a legitimate reason for its behavior. See

8

Norton v. PHC-Elko, Inc., 46 F.Supp.3d 1079, 1077 (D. Nev. 2014) citing McDonnell Douglas

9

Corp. v. Green, 411 U.S. 792, 802 (1973). A prima facie case of discrimination requires a plaintiff

10

to show (1) membership in a protected class, (2) performance according to the employer’s

11

legitimate expectation, (3) an adverse employment action, and (4) that similarly situated employees

12

outside the protected class were treated more favorably. See Pulliam v. United Airlines, Inc., No.

13

2:10-cv-01406-MMD-GWF, 2012 WL 3025087 at *3 (D. Nev. 2012) aff’d 585 F. App’x. 408 (9th

14

Cir. 2014). Plaintiff alleges that she was treated differently because she suffered from migraines,

15

but offers no examples of other employees being treated more favorably. She does not specify her

16

age, so it cannot be determined if younger similarly situated employees were treated more

17

favorably. She also makes no claims that male employees were treated more favorably than she

18

was. Allegations that she was simply singled out compared to her co-workers are insufficient to

19

state a claim for discrimination.

20

B. Defamation/Slander

21

Plaintiff alleges that Defendant fabricated statements involving her forging documents or

22

sleeping in class. In order to properly plead a claim for defamation, Plaintiff must show that there

23

was “(1) a false and defamatory statement by [a] defendant concerning the plaintiff; (2) an

24

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

25

or presumed damages.” Flowers v. Carville, 266 F.Supp.2d 1245, 1251 (D. Nev. 2003) quoting

26

Pegasus v. Reno Newspapers, 57 P.3d 82, 90 (Nev. 2002). Plaintiff has established that statements

27

were made that she argues were false, and that those statements caused her harm, but she has not

28

established that the defendant was actually at fault or that the statements were made to third parties.
3

1
2

Plaintiff has therefore not properly pled a claim for defamation.
A claim for slander includes all the elements of defamation, but also requires “a showing of

3

special damages unless the defamatory statement is slanderous per se.” Lambey v. Nevada ex rel.

4

Dept. of Health and Human Services, No. 2:07-cv-01268-RLH-PAL, 2008 WL 2704191 at *5 (D.

5

Nev. 2008) citing Branda v. Sanford, 637 P.2d 1223, 1225 (Nev. 1981). “A statement is

6

slanderous per se if it (1) imputes commission of a crime; (2) injures the plaintiff’s trade, business,

7

or office; (3) imputes contraction of a loathsome disease; or (4) imputes unchastity in a woman.”

8

Id. Plaintiff may have sufficiently established that the statements were slanderous per se: an

9

accusation of forgery may be sufficient to injure the plaintiff’s trade, business, or office, and may

10

constitute an allegation of criminal activity. Nevertheless, because Plaintiff did not properly plead

11

a claim for defamation, she has also not properly pled a claim for slander per se.

12

C. Negligent Infliction of Emotional Distress

13

Plaintiff alleges the actions taken by Defendant have resulted in “great anguish, humiliation,

14

despair, depression, and financial distress.” Supplement (#3), p.2. The Nevada Supreme Court has

15

recognized that a wrongfully terminated employee may bring an action for negligent infliction of

16

emotional distress (“NIED”) as the direct victim of a defendant’s negligent actions. See State v.

17

Eighth Judicial Dist. Court ex rel County of Clark (Anzalone), 42 P.3d 233, 241 (Nev. 2002) citing

18

Shoen v. Amerco, 896 P.2d 469, 476 (Nev. 1995). Though the cause of action has been specifically

19

recognized, the Nevada Supreme Court has yet to adequately identify the elements of a claim for

20

NIED in a wrongful termination suit. Compare Anzalone, 42 P.3d at 241 (requiring a showing of

21

“extreme and outrageous conduct) with Barmettler v. Reno Air, Inc., 956 P.2d 1382, 1387 (Nev.

22

1998) (not requiring a showing of extreme and outrageous conduct). This Court will apply the

23

elements detailed in Besserman v. California Factors and Finance (Arizona), 2013 WL 6002877 at

24

*5 (D. Nev. 2013): “(1) the defendant acted negligently, (2) either a physical impact or, in the

25

absence of a physical impact, proof of a serious emotional distress causing physical injury or

26

illness, and (3) actual or proximate causation.” See also Barmettler, 956 P.2d at 1387 and Minshew

27

v. Donley, 911 F.Supp.2d 1043, 1063 (D. Nev. 2012). Plaintiff has not pled sufficient facts to show

28

negligence on the part of Defendant, serious emotional distress causing physical injury or illness, or
4

1

that Defendant’s actions caused Plaintiff’s injuries. Allegations that Plaintiff has suffered “great

2

anguish, humiliation, despair, depression, and financial distress” are insufficient. Therefore,

3

Plaintiff has not properly pled a claim for negligent infliction of emotional distress.

4

D. Harassment

5

Plaintiff alleges that the Defendant’s actions “as a whole in their cumulative effect are the

6

basis for my claim of harassment.” Supplement (#3), p. 2. Plaintiff does not specify what type of

7

harassment she is pleading, but the complaint suggests that she is pleading hostile work

8

environment based on age and gender. This requires Plaintiff to establish that she was subjected to

9

verbal or physical harassment due to her age or gender, that the conduct was unwelcome, and that

10

the conduct was sufficiently pervasive to alter the conditions of the plaintiff’s employment and

11

create an abusive work environment. Kang v. U. Lim. America, Inc., 296 F.3d 810, 817 (9th Cir.

12

2002); Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir. 1998). Plaintiff presents no facts to

13

indicate that her age or gender specifically led to Defendant’s actions, and she fails to allege

14

sufficient facts to show that Defendant’s actions were so pervasive as to create an abusive work

15

environment. Therefore, Plaintiff has failed to properly plead a claim for harassment.

16

E. Retaliation

17

Plaintiff alleges that Defendant’s actions were part of “a pattern of harassment and

18

retaliation” that occurred throughout her employment and ended with her termination. Supplement

19

(#3), p.2. In order to properly plead a retaliation claim, Plaintiff must show she (1) engaged in an

20

activity protected under Title VII; (2) her employer subjected her to an adverse employment action,

21

and (3) a causal link exists between the protected activity and the adverse employment action. See

22

Thomas v. City of Beaverton, 379 F.3d 802, 811 (9th Cir. 2004). The final element of causation is

23

determined by the traditional principles of “but-for” causation. See University of Texas

24

Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013). Plaintiff indicates that she

25

attempted to utilize her union benefits, but does not specifically identify what actions she took or

26

what specific response Defendant had to her protected activities. Therefore, Plaintiff has failed to

27

properly plead a claim for retaliation.

28

The Court will dismiss Plaintiff’s Complaint without prejudice, so that she may amend her
5

1

complaint to correct the noted deficiencies. If Plaintiff elects to proceed in this action by filing an

2

amended complaint, she is informed that the court cannot refer to a prior pleading in order to make

3

her amended complaint complete. Local Rule 15-1 requires that an amended complaint be

4

complete in itself without reference to any prior pleading. This is because, as a general rule, an

5

amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th

6

Cir.1967). Once Plaintiff files an amended complaint, the original pleading no longer serves any

7

function in the case. Therefore, in an amended complaint, as in an original complaint, each claim

8

and the involvement of each defendant must be sufficiently alleged. Accordingly,

9
10
11
12
13

IT IS HEREBY ORDERED that Plaintiff’s Supplement to the Complaint (#3) is
dismissed, without prejudice, and with leave to amend.
IT IS FURTHER ORDERED that the Plaintiff is to file an Amended Complaint no later
than November 16, 2015.
DATED this 16th day of October, 2015.

14
15
16

GEORGE FOLEY, JR.
United States Magistrate Judge

17
18
19
20
21
22
23
24
25
26
27
28
6