Trinidad, Jr. v. United Parcel Service

Filing 43

ORDER - UPS's motion to dismiss (ECF No. 9 ) is granted. Amended complaint due by 9/7/2018. Failure to file amended complaint will result in dismissal of this action with prejudice. Signed by Judge Miranda M. Du on 8/7/2018. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DANIEL TRINIDAD, JR.,

Case No. 3:17-cv-00353-MMD-WGC
Plaintiff,

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ORDER

v.
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UNITED PARCEL SERVICE,
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Defendant.
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I.

INTRODUCTION

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Plaintiff Daniel Trinidad, Jr. (“Trinidad”), who is proceeding pro se, asserts that he

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has been subjected to discrimination and harassment based on his race, age, and

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nationality during his more than twenty-one years of employment with Defendant United

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Parcel Service (“UPS”). (ECF No. 5 at 3.) Before the Court is UPS’s motion to dismiss, or

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in the alternative, motion for a more definite statement (“Motion”). (ECF No. 9.) The Court

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has also reviewed Trinidad’s untimely response (ECF No. 36)1 and UPS’s reply (ECF No.

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37). For the reasons discussed herein, UPS’s Motion (ECF No. 8) is granted. However,

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the Court grants Trinidad leave to amend his Complaint.

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II.

RELEVANT BACKGROUND

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The following facts are taken from Trinidad’s Amended Complaint. (ECF No. 5.)

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Trinidad is seventy-two years old. He has worked for UPS since 1996. During his

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employment, Trinidad has been subject to harassment and discrimination based on his

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Court sua sponte extended the deadline for Plaintiff to respond to February
24, 2018. (See ECF No. 22.) Trinidad filed his response on April 10, 2018. (ECF No. 36.)

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race, age, and nationality, and has received unequal pay based on “seniority.” (ECF No.

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5 at 3-4.) As support for his claims, Trinidad alleges, inter alia, that he was “suspended for

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using the restroom without permission;” there was one occasion when everyone was given

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a fifteen-minute break except for him; he was “continuously followed around by [his]

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supervisor” who yelled at him; he “was suspended when they told [him] to lift boxes more

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than [he could] carry;” his work was given to others when he had seniority; he was denied

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pay; and he was retaliated against “after meeting with the Panel.” (Id. at 4.)

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Trinidad alleges that he filed 181 grievances through the union. He also filed a

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complaint with the U.S. Equal Employment Opportunity Commission (“EEOC”) in 2006,

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2016, and 2017. He was told to file a lawsuit under the “ADEA,”2 but he was fearful of

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losing his job. However, he later decided to proceed with filing a lawsuit and initiated this

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action on June 6, 2017. (See ECF No. 1.)

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The Amended Complaint attaches a copy of the Notice of Right to Sue (“Notice”)

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for Trinidad’s 2006 and 2016 EEOC charges of discrimination. (ECF No. 5-8; ECF No.

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5-16.) The 2006 Notice states the EEOC was closing his case, informing Trinidad that he

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had ninety days from receipt of the Notice to file a lawsuit.3 (ECF No. 5-8 at 2.) The 2016

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Notices appear to be related to two separate charges. EEOC Charge No. 550-2016-00546

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(“546 Charge”) alleges age and national origin discrimination. (ECF No. 5-16 at 11.) In

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particular, Trinidad claims that: “[s]ince May 2013, [his] supervisor, Carson Cooke, has

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been harassing and discriminating against [him] . . . During the second week of December

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2015, Cooke instructed everyone to take a 15 minute break except [for Trinidad].” (Id.)

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EEOC Charge No. 550-2016-00644 (“644 Charge”) alleges retaliation and age

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discrimination based on a February 9, 2016 meeting where Trinidad was told he “was

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grossly insubordinate and [his] behavior was unprofessional and inappropriate when [he]

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appears to refer to the Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. §§ 621-34.
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2006 documents (ECF No. 5-8) do not include the notice of charge to identify
Trinidad’s allegations in connection with his 2006 EEOC charge of discrimination.
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failed to follow instructions from management and [he] made inappropriate comments

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toward a supervisor.” (Id. at 8.) The 644 Charge alleges that Trinidad was informed of his

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discharge by letter on February 12, 2016.4 (Id.) Both charges contain a signature date of

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April 21, 2016. (Id. at 8, 11.) The EEOC issued separate Notices relating to both charges

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on March 31, 2017. (Id. at 7, 10.)

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Trinidad filed his application to proceed in forma pauperis and his Complaint on

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June 6, 2017. (ECF No. 1.) The Court dismissed his Complaint with leave to amend. (ECF

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No. 3.) Trinidad filed his Amended Complaint (and his initial Complaint) on the court’s form

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complaint titled “Civil Rights Complaint Pursuant to 42 U.S.C. §1983.” (ECF No. 5.)

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III.

LEGAL STANDARD

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A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which

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relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “a

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short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.

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R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does

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not require detailed factual allegations, it demands more than “labels and conclusions” or

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a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations

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must be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Thus, to

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survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a

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claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal citation omitted).

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In Iqbal, the Supreme Court clarified the two-step approach district courts are to

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apply when considering motions to dismiss. First, a district court must accept as true all

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well-pled factual allegations in the complaint; however, legal conclusions are not entitled

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to the assumption of truth. Iqbal, 556 U.S. at 679. Mere recitals of the elements of a cause

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of action, supported only by conclusory statements, do not suffice. Id. at 678. Second, a

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district court must consider whether the factual allegations in the complaint allege a

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is contrary to allegations in the Amended Complaint which suggest that
Trinidad is still employed with UPS.
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plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff’s

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complaint alleges facts that allow a court to draw a reasonable inference that the

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defendant is liable for the alleged misconduct. Id. at 678. Where the complaint does not

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permit the court to infer more than the mere possibility of misconduct, the complaint has

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“alleged—but it has not shown—that the pleader is entitled to relief.” Id. at 679 (internal

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quotation marks omitted). When the claims in a complaint have not crossed the line from

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conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570.

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A complaint must contain either direct or inferential allegations concerning “all the

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material elements necessary to sustain recovery under some viable legal theory.”

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Twombly, 550 U.S. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101,

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1106 (7th Cir. 1989)).

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Allegations in pro se complaints are held to less stringent standards than formal

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pleadings drafted by lawyers, and must be liberally construed. See Hughes v. Rowe, 449

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U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); see also

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Hamilton v. Brown, 630 F.3d 889, 893 (9th Cir. 2011); Balistreri v. Pacifica Police Dep’t,

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901 F.2d 696, 699 (9th Cir. 1990). Though pro se pleadings are to be liberally construed,

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a plaintiff must still present factual allegations sufficient to state a plausible claim for relief.

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Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010).

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IV.

DISCUSSION

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UPS argues that Trinidad cannot assert claims under 42 U.S.C. §1983; that claims

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based on the Notice issued in 2006 are time barred; and that Trinidad fails to state a claim.

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(ECF No. 9 at 7-9.) Trinidad’s response reiterated that he is alleging age discrimination

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under the ADEA. (ECF No. 36 at 2.) The Court finds dismissal is appropriate. However,

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the Court will grant Trinidad leave to amend because it is not clear that amendment is

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futile.

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A.

Claims under 42 U.S.C. § 1983

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UPS argues that any claims asserted under 42 U.S.C. § 1983 must be dismissed

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because UPS is a private party and the Amended Complaint fails to allege any facts to
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show that UPS acted jointly with the state. (ECF No. 9 at 7-8.) Trinidad’s response does

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not challenge UPS’s contention. He states that he is suing based on the ADEA. (ECF No.

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36 at 2.) Private parties cannot be sued under section 1983. See Chudacoff v. Univ. Med.

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Ctr. of S. Nevada, 649 F.3d 1143, 1149 (9th Cir. 2011). Thus to the extent Trinidad is

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asserting claims under section 1983, they are dismissed with prejudice.

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B.

Claims Based on the 2006 Notice

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UPS asserts that any claims for age and race discrimination based on the 2006

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Notice are time-barred. (ECF No. 9 at 9.) Trinidad fails to address to this argument. (See

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ECF No. 36.)

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A plaintiff must file a lawsuit within ninety days from the EEOC’s issuance of a

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notice of right to sue. See O’Donnell v. Vencor Inc., 466 F.3d 1104, 1111 (9th Cir. 2006).

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Here, the documents relating to the 2006 Notice show that the Notice, which is dated

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October 30, 2006, informed Trinidad that he must file a lawsuit within ninety days of his

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receipt of the Notice. (ECF No. 5-8 at 2.) Trinidad did not file this action until June 6, 2017.

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(ECF No. 1.)

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Trinidad alleges that while he “was told to file a suit under the ADEA . . . [he] was

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afraid to do so for fear of losing [his] job.” (ECF No. 5 at 3.) While Trinidad does not claim

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equitable tolling, the Court finds that equitable tolling does not apply. “Generally, a litigant

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seeking equitable tolling bears the burden of establishing two elements: (1) that he has

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been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in

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his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (citing Irwin v. Dept. of Veterans

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Affairs, 498 U.S. 89, 96 (1990)). Trinidad claimed he was fearful of losing his job if he filed

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a lawsuit after he received the 2006 Notice, but he also claimed he continued to file

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grievances with his union and then filed charges of discrimination with the EEOC in 2016

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and 2017. Under these circumstances, there is no excuse for Trinidad waiting twelve years

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to sue based on the 2006 Notice.

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C.

Failure to State a Claim

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UPS contends that the Amended Complaint fails to allege facts to state the date

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Trinidad received the 2016 and 2017 Notices to allow the Court to determine whether

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claims based on those Notices are timely and fails to sufficiently state a claim. (ECF No.

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9 at 10.) UPS requests as alternative relief a more definite statement. (Id. at 10-12.)

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Trinidad alleges that he filed two charges of discrimination in 2016 and 2017, but

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he does not identify when he received the notice of right to sue for either charge. (See

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ECF No. 5 at 3.) However, the Amended Complaint attaches documents showing two

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charges filed in 2016—the 546 Charge and the 644 Charge—for which Notices were

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issued on March 31, 2017.5 (ECF No. 5-16 at 7-11.) Thus, regardless of when Trinidad

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received these Notices, he filed this action within ninety days of March 31, 2017. Any

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claims for discrimination based on age and national origin and for retaliation arising out of

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the 2016 charges of discrimination are timely. However, because the Amended Complaint

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does not include allegations relating to these two 2016 charges of discrimination or identify

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if the alleged actions listed under “Count I” (ECF No. 5 at 4) are related to any of the 2016

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charges, it is not clear whether such alleged actions arise out of these charges to render

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the claims asserted timely.

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The Amended Complaint suffers from another deficiency—it does not allege

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sufficient facts to state a plausible claim for relief. Trinidad alleges in “Count I”

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“discrimination [on] the basis of age, race, and nationality” and “[e]qual pay based on

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seniority.” (ECF No. 5 at 4.) He then lists some alleged actions without alleging when they

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were taken, how they relate to his protected status, or whether the alleged action was

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taken because of his protected status. (See id.) Moreover, as discussed above, because

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the Amended Complaint does not contain allegations relating to the 2016 and purported

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2017 EEOC charges of discrimination, it is not clear whether the alleged actions identified

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in the Amended Complaint relate to or arise out of these charges of discrimination for the

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documents attached to the Amended Complaint do not contain Trinidad’s
alleged 2017 EEOC charge of discrimination.
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Court to determine whether the claims are timely filed. Without more allegations, the Court

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cannot reasonably infer more than the mere possibility of misconduct, which is not

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sufficient to satisfy Rule 8’s pleading requirements. See Iqbal, 556 U.S. at 679.

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D.

Leave to Amend

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The Court has discretion to grant leave to amend and should freely do so “when

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justice so requires.” Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990) (quoting

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Fed. R. Civ. P. 15(a)). As Trinidad is proceeding pro se and the Court cannot conclude

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that amendment would be futile, the Court grants him leave to file an amended complaint.

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To the extent Trinidad wishes to assert a claim of discrimination based on age

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and/or a claim of retaliation arising from the 2016 Notices or any purported 2017 Notice,

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he must identify when he filed the charges and when he received a Notice of Right to Sue.

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In addition, Trinidad should be aware of the laws governing an age discrimination

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claim to ensure he alleges sufficient facts to satisfy Rule 8’s pleading requirements. In

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order to establish a disparate treatment claim, a plaintiff must offer evidence that gives

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rise to an inference of unlawful discrimination, either through the framework set forth in

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McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), or with direct or circumstantial

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evidence of discriminatory intent. Vasquez v. Cty. of L.A., 349 F.3d 634, 640 (9th Cir.

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2003), as amended (Jan. 2, 2004); see also Shelley v. Geren, 666 F.3d 599, 608 (9th Cir.

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2012) (holding that the McDonnell Douglas framework is still applicable to motions for

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summary judgment on ADEA claims after the Supreme Court’s decision in Gross v. FBL

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Fin. Servs., Inc., 557 U.S. 167, 176 (2009)). “Under this framework, the employee must

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first establish a prima facie case of age discrimination.” Diaz v. Eagle Produce Ltd. P’ship,

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521 F.3d 1201, 1207 (9th Cir. 2008) (internal citations omitted). “If the employee has

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justified a presumption of discrimination, the burden shifts to the employer to articulate a

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legitimate, non-discriminatory reason for its adverse employment action.” Id. “If the

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employer satisfies its burden, the employee must then prove that the reason advanced by

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the employer constitutes mere pretext for unlawful discrimination.” Id. Further, to

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successfully establish an ADEA disparate treatment claim, the plaintiff must prove that
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age was the “but-for” cause of the employer’s adverse decision. Gross, 557 U.S. at 176

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(“[T]he ordinary meaning of the ADEA’s requirement that an employer took adverse action

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‘because of’ age is that age was the ‘reason’ that the employer decided to act.”). “Direct

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evidence is evidence which, if believed, proves the fact of discriminatory animus without

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inference or presumption.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir.

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1998) (citation omitted). In the context of an ADEA claim, direct evidence “is defined as

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evidence of conduct or statements by persons involved in the decision-making process

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that may be viewed as directly reflecting the alleged discriminatory attitude sufficient to

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permit the fact finder to infer that that attitude was more likely than not a motivating factor

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in the employer’s decision.” Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802,

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812 (9th Cir. 2004) (citation, internal quotation marks, and ellipsis omitted).

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A plaintiff can establish a prima facie case of disparate treatment under the ADEA

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with circumstantial evidence by demonstrating that he was (1) a member of the protected

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class (at least age forty); (2) performing his job satisfactorily; (3) subject to an adverse

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employment decision; and (4) either replaced by a substantially younger employee with

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equal or inferior qualifications or that there were circumstances otherwise “giving rise to

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an inference of age discrimination.” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281

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(9th Cir. 2000).

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To the extent Trinidad wishes to allege a claim of retaliation arising from the 2016

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Notices or any purported 2017 Notice, he should also allege sufficient facts to support a

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retaliation claim. Courts utilize the same three-part burden-shifting test in ADEA retaliation

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cases and ADEA disparate impact cases. See Ray v. Henderson, 217 F.3d 1234, 1240

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(9th Cir. 2000). To establish a claim of retaliation, a plaintiff must prove that (1) he engaged

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in a protected activity; (2) he suffered an adverse employment action; and (3) there was a

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causal link between the plaintiff’s protected activity and the adverse employment action.

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Poland v. Chertoff, 494 F.3d 1174, 1179-80 (9th Cir. 2007). There are two types of

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protected activities under 29 U.S.C. § 623(d): opposing any practice made unlawful by the

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section (the “opposition clause”) or filing a charge or otherwise participating in any manner
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in an investigation, proceeding, or litigation under the ADEA (the “filing and participating”

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clause).

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V.

CONCLUSION

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The Court notes that Defendant made several arguments and cited to several cases

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not discussed above. The Court has reviewed these arguments and cases and determines

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that they do not warrant discussion as they do not affect the outcome of Defendant’s

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motion.

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It is therefore ordered that UPS’s motion to dismiss (ECF No. 9) is granted. Trinidad

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is granted leave to file an amended complaint to cure the deficiencies of his Amended

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Complaint. Trinidad will be given until September 7, 2018, to file an amended complaint.

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Failure to file an amended complaint by September 7, 2018, will result in dismissal of this

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action with prejudice.

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DATED THIS 7th day of August 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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