Iwaniszek v. Pride Transport, Inc.

Filing 4

SCREENING ORDER. IT IS ORDERED that the Clerk of the Court SHALL FILE 1 -1 Plaintiff Steven J. Iwaniszek's proposedComplaint but SHALL NOT issue summons. IT IS FURTHER ORDERED that the Complaint is DISMISSED with leave to file an amended com plaint by 3/14/19, if Mr. Iwaniszek believes he can correct the noted deficiencies. IT IS FURTHER ORDERED that Mr. Iwaniszek shall file a certificate of interested parties as required by LR 7.1-1 of the Local Rules of Practice on or before 3/14/19. Signed by Magistrate Judge Peggy A. Leen on 2/13/2019. (Copies have been distributed pursuant to the NEF - Encl.: 1 -1 Complaint, Complaint for Employment Discrimination - ADR)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 STEVEN J. IWANISZEK, Case No. 2:17-cv-02918-JCM-PAL 8 Plaintiff, 9 10 SCREENING ORDER v. PRIDE TRANSPORT INC., (Compl. – ECF No. 1-1) Defendant. 11 12 This matter is before the court on an initial screening of Plaintiff Steven J. Iwaniszek’s 13 Complaint (ECF No. 1-1). This screening is referred to the undersigned pursuant to 28 U.S.C. 14 § 636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice. 15 Mr. Iwaniszek is proceeding in this action pro se, which means he is not represented by an 16 attorney. See LSR 2-1. He has requested authority pursuant to 28 U.S.C. § 1915 to proceed in 17 forma pauperis (“IFP”), meaning without prepaying the filing fees, and submitted a Complaint. 18 In a separate Report of Findings and Recommendation, the undersigned recommended that the IFP 19 application be denied, that he be required to pay the $400.00 filing fee, and that his failure to do 20 so within the time set by the district judge should result in dismissal of this action. 21 I. SCREENING THE COMPLAINT 22 When a litigant requests IFP status, federal courts screen the complaint before allowing the 23 case to move forward, issuing summons, and requiring an answer or responsive pleading. Lopez 24 v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000). If the complaint states a plausible claim for relief, 25 the court will direct Clerk’s Office to issue summons to the defendant(s) and instruct the plaintiff 26 to serve the summons and complaint within 90 days of the screening order authorizing service of 27 process. See Fed. R. Civ. P. 4(m). If the court finds that the complaint fails to state an actionable 28 claim, the complaint is dismissed and the plaintiff is ordinarily given leave to amend with 1 1 directions as to curing the pleading deficiencies, unless it is clear from the face of the complaint 2 that the deficiencies cannot be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106 3 (9th Cir. 1995). Allegations in a pro se complaint are held to less stringent standards than formal 4 pleading drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hebbe v. Pliler, 627 5 F.3d 338, 342 n.7 (9th Cir. 2010). However, pro se litigants “should not be treated more favorably 6 than parties with attorneys of record,” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986); 7 rather, they must follow the same rules of procedure that govern other litigants. Ghazali v. Moran, 8 46 F.3d 52, 54 (9th Cir. 1995). A. Legal Standard 9 10 Federal courts are required to dismiss an IFP action if the complaint fails to state a claim 11 upon which relief may be granted, is legally “frivolous or malicious,” or seeks monetary relief 12 from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). In determining whether 13 a complaint is frivolous and therefore warrants complete or partial dismissal, a court is not bound 14 “to accept without question the truth of the plaintiff’s allegations.” Denton v. Hernandez, 504 U.S. 15 25, 32 (1992). Allegations are frivolous when they are “clearly baseless” or lack an arguable basis 16 in law and fact. Id. The standard for determining whether a plaintiff fails to state a claim upon 17 which relief can be granted under § 1915 is the same as the standard under Rule 12(b)(6) of the 18 Federal Rules of Civil Procedure1 for failure to state a claim. Watison v. Carter, 668 F.3d 1108, 19 1112 (9th Cir. 2012). A district court may dismiss a plaintiff’s complaint for “failure to state a 20 claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Review under Rule 12(b)(6) is 21 essentially a ruling on a question of law. N. Star Intern. v. Ariz. Corp. Comm’n, 720 F.2d 578, 22 580 (9th Cir. 1983); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (noting that the purpose 23 of Rule 12(b)(6) is to test the legal sufficiency of a complaint). 24 A properly pled complaint must provide “a short and plain statement of the claim showing 25 that the pleader is entitled to relief” as well as the grounds for the court’s jurisdiction and a demand 26 for relief. Fed. R. Civ. P. 8(a). To avoid dismissal on a Rule 12(b)(6) review, a plaintiff must 27 allege enough facts to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v. 28 1 Any reference to a “Rule” or the “Rules” in this Order refer to the Federal Rules of Civil Procedure. 2 1 Twombly, 550 U.S. 544, 570 (2007). A claim has facial plausibility when a plaintiff alleges factual 2 content that allows the court to make a reasonable inference that a defendant is liable for the 3 misconduct alleged. Teixeira v. County of Alameda, 873 F.3d 670, 678 (9th Cir. 2017) (quoting 4 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). This plausibility standard is not a “ ‘probability 5 requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” 6 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). Although Rule 8(a) does not require 7 detailed factual allegations, it demands “more than labels and conclusions.” Id. at 678. Merely 8 reciting the elements of a cause of action and providing only conclusory allegations will not be 9 enough to survive the court’s review. Id. at 679–80. For the purpose of a Rule 12(b)(6) review, 10 well-plead factual allegations are accepted as true, but vague allegations, unreasonable inferences, 11 and legal conclusions are not entitled to the assumption of truth. Teixeira, 873 F.3d at 678 (citing 12 Iqbal, 556 U.S. at 680). A complaint should be dismissed where the claims have not crossed the 13 line from conceivable to plausible. Twombly, 550 U.S. at 570. 14 B. Mr. Iwaniszek’s Factual Allegations and Claims for Relief 15 The proposed Complaint (ECF No. 1-1) names Pride Transport, Inc. as the defendant. Mr. 16 Iwaniszek alleges that Pride Transport discriminated against him in employment pursuant to Title 17 VII of the Civil Rights Act, the Americans with Disabilities Act of 1990, and the Genetic 18 Information Nondiscrimination Act. Id. at 3, ¶ II. The alleged misconduct occurred from 19 September 17 to December 20, 2016, and included a failure to accommodate his disability or 20 perceived disability, retaliation, harassment, and termination of his employment. Id. at 4, ¶ III.A– 21 B. Iwaniszek claims that he was discriminated against based on his disability or perceived 22 disability of a back and wrist injury and past workers compensation claims. Id., ¶ III.D. 23 Mr. Iwaniszek alleges that Pride Transport fired him on September 19, 2016, two days after 24 he filed a workers’ compensation claim for an injury. Id. at 5, ¶ III.E. In addition, Pride Transport 25 purportedly harassed him by attempting to have him sign a medical leave form, and if he did not, 26 his position would be terminated. Iwaniszek references emails correspondence between himself, 27 Pride Transport, and a workers’ compensation fund of Sandy, Utah; however no emails were 28 attached to the pleading. 3 1 Mr. Iwaniszek asserts that he filed a charge with the Equal Employment Opportunity 2 Commission (“EEOC”) regarding Pride Transport’s alleged discriminatory conduct on or about 3 May 23, 2017. Id., ¶ IV.A. The EEOC issued a Notice of Right to Sue letter, which Iwaniszek 4 received on or about August 24, 2017. Id., ¶ IV.B. In his request for relief, Mr. Iwaniszek seeks 5 $22,000 in backpay, compensatory and punitive damages of $300,000, and attorneys’ fees and 6 costs. Id. at 6, ¶ V. 7 C. Analysis 8 The Complaint asserts claims for employment discrimination pursuant to Title VII of the 9 Civil Rights Act, 42 U.S.C. §§ 2000e–2000e-17 (“Title VII”), the Americans with Disabilities Act, 10 42 U.S.C. §§ 12112–12117 (“ADA”), and Genetic Information Nondiscrimination Act of 2008 11 (“GINA”). For the reasons discussed below, the court finds that the Complaint fails to state a 12 claim upon which relief can be granted. However, because it is possible that Mr. Iwaniszek may 13 be able to adequately allege claims, if sufficient facts exist, the court will dismiss the Complaint 14 and with leave to amend if he believes he can cure the deficiencies noted in this order. 15 1. Discrimination Under Title VII 16 Title VII allows an individual to sue an employer for discrimination on the basis of race, 17 color, religion, gender, or national origin. See 42 U.S.C. § 2000e-5. In this case, Iwaniszek alleges 18 discrimination on the basis of disability. To establish a Title VII claim, a plaintiff must allege: 19 (1) he is a member of a protected class; (2) he was qualified for his position and performing his 20 job satisfactorily; (3) he experienced an adverse employment action; and (4) similarly situated 21 individuals outside of his protected class were “treated more favorably, or other circumstances 22 surrounding the adverse employment action give rise to an inference of discrimination.” Hawn v. 23 Exec. Jet Mgmt. Inc., 615 F.3d 1151, 1156 (9th Cir. 2010); 42 U.S.C. § 2000e-3(e). An adverse 24 employment action is one that materially affects the compensation, terms, conditions, and 25 privileges of employment. Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008). 26 The Complaint fails to state a plausible claim for discrimination under Title VII. Mr. 27 Iwaniszek alleges that he experienced adverse employment actions under Title VII, including 28 termination of his employment, retaliation, and harassment. He checked a box on the form 4 1 indicating he experienced discrimination based on his disability or perceived disability. Title VII 2 prohibits discrimination against members of certain protected classes: race, color, gender/sex, 3 religion, or national origin. 4 discrimination based on disability or perceived disability is prohibited by the ADA. In addition, 5 Iwaniszek does not allege that he was qualified for his position and performing his job 6 satisfactorily, or that similarly situated individuals outside of his protected class were treated more 7 favorably. Mr. Iwaniszek does not allege any facts to support a plausible Title VII claim. 8 1. Disability is not a protected class under Title VII; rather, Discrimination Based on Disability 9 The ADA makes it unlawful for covered entities, including private employers, to 10 “discriminate against a qualified individual on the basis of disability in regard to job application 11 procedures, the hiring, advancement, or discharge of employees, employee compensation, job 12 training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112 (a); see 13 also Sutton v. United Air Lines, Inc., 527 U.S. 471, 477 (1999). Discrimination includes the failure 14 to make “reasonable accommodations to the known physical or mental limitations of an otherwise 15 qualified individual who is an applicant or employee, unless such covered entity can demonstrate 16 that the accommodation would impose an undue hardship” on the entity’s business operation. 42 17 U.S.C. § 12112(b)(5)(A). To qualify for relief under the ADA, a plaintiff must allege that he or 18 she: (1) is a disabled person within the meaning of the ADA; (2) is qualified, with or without 19 reasonable accommodation, to perform the essential job functions; and (3) suffered an adverse 20 employment action because of the disability. Samper v. Providence St. Vincent Med. Ctr., 675 21 F.3d 1233, 1237 (9th Cir. 2012). 22 Only a “qualified individual with a disability” may state a claim for discrimination under 23 the ADA. Kennedy v. Applause, Inc., 90 F.3d 1477, 1480–81 (9th Cir. 1996). The ADA defines 24 “qualified individual with a disability” as an “individual with a disability who, with or without 25 reasonable accommodation, can perform the essential functions of the employment position that 26 such individual holds or desires.” 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m); see also Kennedy, 27 90 F.3d at 1481. The ADA defines the term “disability” as: “(A) a physical or mental impairment 28 that substantially limits one or more of the major life activities of such individual; (B) a record of 5 1 such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2). 2 The Complaint fails to allege a colorable claim under the ADA. Mr. Iwaniszek alleges he 3 was terminated because of a back and wrist injury and past workers compensation claims, which 4 the court construes as an allegation that he is a disabled person within the meaning of the ADA. 5 He alleges he suffered adverse employment actions because of his disability including 6 accommodate his disability, harassment, retaliation, and termination. However, he does not allege 7 that he was qualified to perform the essential functions of her job with or without reasonable 8 accommodation. Thus, Mr. Iwaniszek has not stated a plausible ADA claim. 2. The Genetic Information Nondiscrimination Act 9 10 The Genetic Information Nondiscrimination Act of 2008 (“GINA”) is intended to prohibit 11 employers from making a “predictive assessment concerning an individual’s propensity to get an 12 inheritable genetic disease or disorder based on the occurrence of an inheritable disease or disorder 13 in [a] family member.” Poore v. Peterbilt of Bristol, LLC, 852 F. Supp. 2d 727, 730 (W.D. Va. 14 2012) (quoting H.R. Rep. No. 110–28, pt. 3, at 70 (2007), 2008 U.S.C.C.A.N. 112, 141). Under 15 GINA, it is unlawful for an employer to discriminate against an employee on the basis of genetic 16 information, to use genetic information in making employment decisions, or to “request, require, 17 or purchase” genetic information from an employee. 42 U.S.C. § 2000ff1 (a), (b). “Genetic 18 information” is defined under GINA as information about (1) an individual’s genetic tests; (2) the 19 genetic tests of family members of an individual; or (3) the manifestation of a disease or disorder 20 in family members of an individual. 42 U.S.C. § 2000ff(4). 21 Here, Mr. Iwaniszek alleges no facts showing that he was discriminated against based on 22 his or his family’s genetic tests or diseases that run in his family. He simply checked a box on the 23 complaint form indicating that “other federal law” applies and wrote the name of the statute. He 24 does not explain how the alleged discriminatory conduct is related to his genetic information. 25 Simply identifying a statute providing a cause of action, with no factual basis, is a conclusory 26 assertion that does not state a plausible claim. See Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 27 678. Thus, Mr. Iwaniszek fails to state an actionable claim for discrimination under GINA. 28 /// 6 1 II. INSTRUCTIONS FOR AMENDING THE COMPLAINT 2 If Mr. Iwaniszek chooses to file an amended complaint, he must do so by March 14, 2019. 3 The amended complaint must contain a short and plain statement of: (1) the grounds for the court’s 4 jurisdiction; (2) any claim he has showing he is entitled to relief; and (3) a demand for the relief 5 he seeks. See Fed. R. Civ. P. 8(a). The amended complaint should set forth the claims in short 6 and plain terms, simply, concisely, and directly. See Swierkeiewicz v. Sorema N.A., 534 U.S. 506, 7 514 (2002). This means that Iwaniszek should avoid legal jargon and conclusions. Instead, he 8 should summarize the information he believes to be relevant in his own words for each claim 9 asserted in the amended complaint. Iqbal, 556 U.S. at 678 (Rule 8 demands “more than labels and 10 conclusions”). Mr. Iwaniszek is advised to support each of his claims with factual allegations 11 because all complaints “must contain sufficient allegations of underlying facts to give fair notice 12 and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 13 (9th Cir. 2011). In addition, exhibits are not a substitute for a proper complaint. Instead, Iwaniszek 14 should summarize the information he believes to be relevant as part of the supporting facts for 15 each claim asserted in the amended complaint. 16 Mr. Iwaniszek is also informed that the court cannot refer to a prior pleading (i.e., the 17 original complaint) in order to make the amended complaint complete. Local Rule 15-1 requires 18 that an amended complaint be complete in itself without reference to any prior pleading. See LR 19 15-1(a). This is because, as a general rule, an amended complaint supersedes the original 20 complaint. Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). Once a 21 plaintiff files an amended complaint, the original pleading no longer serves any function in the 22 case. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Therefore, in an amended 23 complaint, as in an original complaint, each claim must be sufficiently alleged. 24 Based on the foregoing, 25 IT IS ORDERED: 26 1. The Clerk of the Court SHALL FILE Plaintiff Steven J. Iwaniszek’s proposed Complaint (ECF No. 1-1) but SHALL NOT issue summons. 27 28 /// 7 1 2. The Clerk of Court shall MAIL Mr. Iwaniszek one blank form complaint for 2 employment discrimination actions, one copy of the original Complaint, and one copy 3 of this Screening Order. 4 5 3. The Complaint is DISMISSED with leave to file an amended complaint by March 14, 2019, if Mr. Iwaniszek believes he can correct the noted deficiencies. 6 4. The amended complaint must be a complete document in and of itself and will 7 supersede the original complaint in its entirety. Any allegations, parties, or requests 8 for relief from prior papers that are not carried forward in the amended complaint will 9 no longer be before the court. 10 5. Mr. Iwaniszek shall clearly title the amended complaint as such by writing “FIRST 11 AMENDED” immediately above “Complaint for Employment Discrimination” on the 12 first page and 2:17-cv-02918-JCM-PAL in the space for “Case No.” 13 14 6. Mr. Iwaniszek shall file a certificate of interested parties as required by LR 7.1-1 of the Local Rules of Practice on or before March 14, 2019. 15 7. Mr. Iwaniszek’s failure to comply with this Screening Order by submitting an amended 16 complaint and certificate of interested parties before the March 14, 2019 deadline will 17 result in a recommendation to the district judge that this case be dismissed. 18 Dated this 13th day of February, 2019. 19 ___________________________________ PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 8

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