Boru v. Ingram Micro Services LLC

Filing 10

ORDER granting 5 Motion/Application for Leave to Proceed in forma pauperis; Plaintiff's Complaint is dismissed without prejudice. Amended Complaint deadline: 1/2/2020. Signed by Magistrate Judge Brenda Weksler on 12/2/2019. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TITA TED BORU,

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Plaintiff,
ORDER

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Case No.: 2:18-cv-00982-RFB-BNW

v.
INGRAM MICRO SERVICES, LLC,

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Defendant.

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Presently before the Court is Plaintiff Tita Ted Boru’s Application to Proceed In Forma

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Pauperis (ECF No. 5). Boru previously filed a complaint that appears to allege employment

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discrimination claims against his former employer, defendant Ingram Micro Services, LLC (ECF

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No. 1-1).

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I.

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In Forma Pauperis Application
Boru submitted the long form version of the “Application to Proceed in District Court

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without Prepaying Fees or Costs,” as required by 28 U.S.C. § 1915(a), demonstrating an inability

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to prepay fees and costs or give security for them. Accordingly, Boru’s request to proceed in

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forma pauperis 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 screen the complaint

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under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims

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and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be

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granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard

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for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668

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F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient

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factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft

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v. Iqbal, 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only
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dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of

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his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir.

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2014) (quoting Iqbal, 556 U.S. at 678).

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In considering whether the complaint is sufficient to state a claim, all allegations of

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material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler

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Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted).

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Although the standard under the Federal Rule of Civil Procedure 12(b)(6) does not require detailed

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factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of

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action is insufficient. Id. Unless it is clear the complaint’s deficiencies could not be cured through

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amendment, a pro se plaintiff should be given leave to amend the complaint with notice regarding

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the complaint’s deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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A.

Background

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Boru alleges he formerly was employed as a production technician at Ingram Micro

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Services. (Compl. (ECF No. 1-1) at 6.) Between November 2015 and February 18, 2016, Boru

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alleges he was verbally and physically harassed while employed by Ingram. (Id. at 4, 6.) The

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harassment included daily verbal harassment and two physical encounters. (Id. at 6.) Boru further

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alleges he reported the harassment to management, Francisco Tejada and Brandon, 1 but they did

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not act. (Id. at 4, 5-6.)

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According to Boru, he applied for other open positions at the company, such as a position

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in the shipping department and as a quality control agent, but he was not interviewed or offered the

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positions despite his “perfect attendance, very good productivity and attitude.” (Id. at 5.) Instead,

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Boru contends the company hired other candidates who were not as qualified as him, including

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two employees “who were responsible for making [his] workplace very uncomfortable.” (Id.)

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Boru alleges the harassment was so excessive he was constructively discharged from his position.

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(Id. at 4, 7.) Specifically, Boru states “[t]here have been many other very violent endings in the

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Brandon’s last name is illegible. (See Compl. at 5.)

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past history involving employee related deaths. I Ted chose to walk-out/constructively discharge

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instead of taking the law in my own hands.” (Id. at 7.)

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Boru states he filed a complaint with the Nevada Equal Rights Commission but that it did

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not investigate and ruled in favor of Ingram. (Id. at 7-8.) He subsequently sued Ingram in this

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court for discrimination, seeking one year of lost wages and damages for emotional distress of

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$100,000. (Id. at 4.) In his in forma pauperis application, Boru explains that he diligently has

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been searching for work since his constructive discharge but that he is unable to secure

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employment due to his age. (See IFP Appl. (ECF No. 5).)

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B.

Federal Question Jurisdiction

Federal courts are courts of limited jurisdiction and possess only that power authorized by

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the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). Pursuant to 28 U.S.C. §

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1331, federal courts have original jurisdiction over “all civil actions arising under the Constitution,

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laws, or treaties of the United States.” Cases “arise under” federal law either when federal law

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creates the cause of action or where the vindication of a right under state law necessarily turns on

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the construction of federal law. Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088-89

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(9th Cir. 2002). Whether federal question jurisdiction exists is based on the “well-pleaded

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complaint rule,” which provides that “federal jurisdiction exists only when a federal question is

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presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar, Inc. v. Williams,

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482 U.S. 386, 392 (1987).

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Boru’s complaint asserts what the court understands to be employment discrimination and

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retaliation claims and states that he has completed the administrative process before the Nevada

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Equal Rights Commission. Therefore, liberally construing Boru’s complaint as the court is

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required to do at this stage, it appears Boru invokes the court’s federal question jurisdiction.

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However, Boru does not attach a notice of right to sue or allege when the notice was received by

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him in comparison to when he filed his original complaint. As discussed below, the court will

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dismiss Boru’s complaint with leave to amend. If Boru chooses to amend, he must attach his

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notice of right to sue or include specific facts regarding when he received the notice so the court

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can evaluate whether Boru timely filed this lawsuit.
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C.

Discrimination

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Title VII makes it “an unlawful employment practice for an employer . . . to discriminate

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against any individual with respect to his compensation, terms, conditions, or privileges of

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employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.

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§ 2000e–2(a)(1). To state a claim for discrimination, a plaintiff must allege he (1) belongs to a

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protected class; (2) was qualified for the position; (3) was subject to an adverse employment

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action; and (4) similarly situated individuals outside her protected class were treated more

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favorably, or that a discriminatory reason motivated the employer. Reynaga v. Roseburg Forest

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Prod., 847 F.3d 678, 690-91 (9th Cir. 2017) (citing McDonnell Douglas Corp. v. Green, 411 U.S.

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792 (1973)). If the plaintiff makes out a prima facie case, the burden shifts to the employer to

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articulate a legitimate, nondiscriminatory reason for its actions. Id. at 691. If the defendant does

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so, then the plaintiff must show that the employer’s proffered reasons were “a mere pretext for

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unlawful discrimination.” Id.

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Here, Boru fails to state a claim for discrimination under Title VII because he does not

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allege facts indicating that he belongs to a protected class. He alleges he was qualified for his

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position and subject to an adverse employment action, but he does not offer any facts indicating his

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constructive termination was because of his race, color, religion, sex, or national origin. He also

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states that other employees were treated more favorably, but he does not specify whether they were

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similarly situated employees outside his protected class. The court therefore will dismiss Boru’s

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discrimination claim with leave to amend to include facts regarding his protected class, if any, and

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the the circumstances surrounding his constructive termination that give rise to an inference of

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discrimination.

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D.

Retaliation

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To make out a prima facie case of retaliation, plaintiffs must show that they (1) “undertook

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a protected activity under Title VII,” (2) defendants subjected them to an adverse employment

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action, and (3) “a causal link between the two.” Vasquez v. City. of Los Angeles, 349 F.3d 634,

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646 (9th Cir. 2003). Protected activities under Title VII include opposing allegedly discriminatory

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acts by one’s employer. Id.; see also 42 U.S.C. 2000(e)–3(a). They also include making informal

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complaints to one’s supervisor. See Ray v. Henderson, 217 F.3d 1234, 1240 n.3 (9th Cir. 2000).

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Here, Boru fails to state a claim for retaliation. He alleges he suffered the adverse

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employment action of constructive discharge, but he does not allege facts indicating that he

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undertook a protected activity under Title VII or the causal link between the two. While he alleges

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his supervisors retaliated against him by not hiring him for other positions, he does not allege facts

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indicating that he undertook a protected activity under Title VII and that it was the reason for the

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retaliation. The court therefore will dismiss Boru’s retaliation claim with leave to amend.

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E.

Instructions for Amendment

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If Plaintiff chooses to file an amended complaint, the document must be titled “Amended

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Complaint.” The amended complaint must contain a short and plain statement of the grounds for

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the Court’s jurisdiction. See Fed. R. Civ. P. 8(a)(1). Additionally, the amended complaint must

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contain a short and plain statement describing the facts underlying Plaintiff’s claims and

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Defendant’s conduct that make up his claim of discrimination. See Fed. R. Civ. P. 8(a)(2).

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Although the Federal Rules of Civil Procedure adopt a flexible pleading standard, Plaintiff still

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must give the Defendant fair notice of the Plaintiff’s claims against it and Plaintiff’s entitlement to

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relief.

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Additionally, Plaintiff is advised that if he files an amended complaint, the original

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complaint (ECF No.1-1) will no longer have any effect. Therefore, if Plaintiff files an amended

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complaint, the amended complaint must include all allegations Plaintiff seeks to make without

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reference to any prior pleading or other documents. The Court cannot refer to a prior pleading or

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other documents to make Plaintiff’s amended complaint complete.

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III.

Conclusion

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IT IS HEREBY ORDERED that Plaintiff’s Application for Leave to Proceed In Forma

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Pauperis (ECF No. 5) is GRANTED. Plaintiff will not be required to pay the filing fee in this

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action.

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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 a
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security for fees or costs. This Order granting leave to proceed in forma pauperis does not extend

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to the issuance of subpoenas at government expense.

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

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with leave to amend. Plaintiff has until January 2, 2020, to file an amended complaint correcting

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the noted deficiencies as stated in this order. Failure to comply with this Order may result in a

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recommendation that this action be dismissed.

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DATED December 2, 2019

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BRENDA N. WEKSLER
UNITED STATES MAGISTRATE JUDGE

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