Ombe v. Cook et al

Filing 34

MEMORANDUM OPINION AND ORDER by District Judge Robert C. Brack dismissing case with out prejudice (jn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
HITOSHI OMBE,
Plaintiff,
v.

No. 16cv1114 RB/LF

GEORGE COOK, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER OF DISMISSAL

THIS MATTER comes before the Court on pro se Plaintiff’s Second Amended
Complaint (Doc. 26 (2d Am. Compl.)), filed March 28, 2016. For the reasons stated below, the
Court will DISMISS this case without prejudice.
Plaintiff, a 65 year old man of Japanese origin with autism spectrum disorder and
neurocognitive impairment, proceeding pro se, asserted claims pursuant to the Americans with
Disabilities Act (“ADA”), Title VII of the Civil Rights Act (“Title VII”), and the Age
Discrimination in Employment Act (“ADEA”). (See 2d Am. Compl. at 7.)
After setting forth the allegations necessary to state claims under the ADA, Title VII and
the ADEA, the Court found that Plaintiff failed to state a claim: (i) under the ADA because he did
not allege that he suffered adverse employment actions “because of his disability,” and did “not
allege that he requested that [his employers and coworkers] provide assistance or make reasonable
accommodations for his disability]”; (ii) “pursuant to Title VII because he has not alleged any
facts that the alleged adverse employment actions took place under circumstances giving rise to an
inference of discrimination based on Plaintiff’s race or national origin;” and (iii) “pursuant to the
ADEA because he has not alleged any facts showing that his employer took an adverse

employment action because of Plaintiff’s age.” (Doc. 24 at 5–7.) The Court dismissed the
Amended Complaint without prejudice and granted Plaintiff leave to file a second amended
complaint. Plaintiff subsequently filed his Second Amended Complaint which asserts claims
under the ADEA, Title VII, the ADA, other unspecified federal laws and state law.
Age Discrimination Claims
The Court will dismiss Plaintiff’s age discrimination claims for failure to state a claim.
Despite notifying Plaintiff that to state a claim pursuant to the ADEA he must allege facts showing
his “employer took adverse action ‘because of’ age [meaning] that age was the ‘reason’ that the
employer decided to act,” (see Doc. 24 at 7), Plaintiff’s Second Amended Complaint does not
allege any facts showing that his employer took any adverse employment action because of
Plaintiff’s age. The only allegations in the Second Amended Complaint regarding age are:
(i) Plaintiff “is 60+ years of age;” (ii) “The plaintiff is protected by Age Discrimination in
Employment Act;” (iii) “Denials of healthcare needs included involuntary delay of eye surgery
which was required because of the plaintiff[’s] age;” and (iv) several conclusory allegations that
Defendants discriminated against Plaintiff because of his age such as “defendant (have)
discriminated against the plaintiff because . . . of [plaintiff’s] age.” (2d Am. Compl., ¶ 7 at 2, ¶ 18
at 4, ¶¶ 34–36 at 6–7, ¶¶ 39–40 at 7, ¶ 45 at 8, ¶ 52 at 9, ¶ C-6 at 17.)
National Origin Discrimination Claims
The Court will dismiss Plaintiff’s national origin/race discrimination claims for failure to
state a claim. Despite notifying Plaintiff that to state a claim pursuant to Title VII he must allege
facts showing that the alleged adverse employment actions took place under circumstances giving
rise to an inference of discrimination based on Plaintiff’s race or national origin, (see Doc. 24 at 6),
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Plaintiff makes no such allegations in his Second Amended Complaint. The only allegations in
the Second Amended Complaint regarding discrimination based on national origin or race are:
(i) Plaintiff “is of Japanese origin, consequently Asian;” (ii) “The plaintiff is protected by Title VII
of Civil Right Act of 1964;” (iii) Defendants have “begun to sell cheap wooden toy Katana
(Swords) made in China. The plaintiff sold these a few times. Since the KATANA could not fit
into the general concept of the store, this kind of business practices are discriminatory against
Japanese. Katana is Cultural Treasury of Japan, not commodity;” and (iv) several conclusory
allegations that Defendants discriminated against Plaintiff because of his “Nation Origin/or
Asian.” (2d Am. Compl., ¶ 7 at 2, ¶¶ 15–16, ¶¶ 31–21 at 6, ¶¶ 35–36 at 6–7, ¶¶ 39–40 at 7, ¶ 50 at
9, ¶ A-6 at 13, ¶¶ A-9 – A-10 at 14, ¶ B-2 at 15, ¶ C-1 at 16, ¶C-4 at 17, ¶ C-15 at 20, ¶¶ E3–E5 at
22-23, and ¶ I-4 at 28.)
Disability Claims
The Court will dismiss Plaintiff’s disability claims because the Second Amended
Complaint fails to state a claim under the ADA for both discrimination and failure to accommodate
Plaintiff’s disability.
The Court set forth the elements of a disability discrimination claim under the ADA and
notified Plaintiff that he must show that he has suffered an adverse employment action because of
the disability.

(See Doc. 24 at 4.)

Plaintiff makes numerous conclusory allegations that

Defendants discriminated against him because of his disability, but “conclusory allegations
without supporting factual averments are insufficient to state a claim on which relief can be
based.” See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). (See also, e.g., 2d Am.
Compl. ¶ 32 at 6, ¶ 36 at 7, ¶ A-11 at 15 (“defendant’s operating and employment practices are

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discriminatory,” “The defendants (have) discriminated against the plaintiff because of the plaintiff
DISABILITIES,” “This is/was clearly Discrimination against the plaintiff DISABILITIES”).)
Plaintiff characterizes the actions of the Defendants as “discriminatory” where they cause Plaintiff
distress due to his disability. (See, e.g., 2d Am. Compl. ¶ A-2 at 12, ¶ A-6 at 13¶ C-1, C-2, C-3 at
16, ¶ E3 at 22 (“lack of genuine communication consistent with Autistic Disability,” failure “to
express genuine recognition of the value of the plaintiff provided to the store,” telling lies, making
excuses such as “cleaning dust on the shelves is more important than cleaning coffee counter
because George said so,” dealing with “lazy and irresponsible” persons, taking a picture of
plaintiff).)

The factual allegations in the Second Amended Complaint do not show that

Defendants discriminated against Plaintiff because of his disability; they only show that because of
his disability, the behavior of other persons causes Plaintiff distress. See Davidson v. Am. Online,
Inc., 337 F.3d 1179, 1188 (10th Cir. 2003) (“Discrimination” as used in the ADA “means treating
a qualified individual with a disability differently because of the disability, that is, disparate
treatment.” “Discrimination” also includes failing to provide a reasonable accommodation and
using qualification standards or other selection criteria that screen out or tend to screen out an
individual with a disability, that is, disparate impact).
Plaintiff states in his Second Amended Complaint that he needs accommodations for his
disability:
Because of [his] disabilities, the plaintiff needs accommodations in order to
maintain his major life activities.
The plaintiff needs/needed accommodations to CLEARLY COMMU[N]ICATE
with the management and CLEARLY UNDERSTAND necessary information to
perform his duties without awfully lots of inner distress because of the
DISABILITIES.
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(2d Am. Compl. ¶ 13 at 4, ¶ 23 at 5.) Plaintiff also alleges that Defendants knew that Plaintiff is
disabled. (See 2d Am. Compl. ¶ 26 at 5, ¶ C-12 at 19, ¶ D2 at 20, ¶ E2 at 21.) However, the
Second Amended Complaint does not allege that Plaintiff requested assistance for his disability.
(See Doc. 24 at 5 (informing Plaintiff that he failed to state a claim under the ADA for failure to
accommodate his disability because he did “not allege that he requested that [Defendants] provide
assistance or make reasonable accommodations for his disability) (quoting EEOC v. C.R. England,
Inc., 644 F.3d 1028, 1049 (10th Cir. 2011) (“before an employer’s duty to provide reasonable
accommodations . . . is triggered under the ADA, the employee must make an adequate request”
and the request “must make clear that the employee wants assistance for his or her disability”)).)
Other Federal Law Claims
Plaintiff asserts that the “stated facts violate any other applicable federal . . . laws.” (2d
Am. Compl. ¶ 54 at 9.) Plaintiff does not identify those other applicable federal laws and the
Court will not seek to identify which other federal laws may be applicable. See Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991) (it is not the proper function of the district court to assume
the role of advocate for the pro se litigant). The Court will dismiss without prejudice any claims
that Plaintiff may be asserting under “any other applicable federal laws.”
State Law/Tort Claims
Plaintiff also asserts that the facts show Defendants violated “state laws as well as tort
law.” (2d Am. Compl. ¶ 54 at 9.) The Court, having dismissed all of Plaintiff’s federal law
claims, declines to exercise supplemental jurisdiction over Plaintiff’s state law claims. See
28 U.S.C. § 1367(c)(2) (“The district courts may decline to exercise supplemental jurisdiction

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over a claim . . . if . . . the district court has dismissed all claims over which it has original
jurisdiction”).
Having dismissed all of Plaintiff’s federal law claims without prejudice and declining to
exercise supplemental jurisdiction over Plaintiff’s state law claims, the Court will dismiss this case
without prejudice.
IT IS ORDERED that this case is DISMISSED without prejudice.

__________________________________
ROBERT C. BRACK
UNITED STATES DISTRICT JUDGE

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