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