The opinion
1
2
3
4
5
6 UNITED STATES DISTRICT COURT
7 EASTERN DISTRICT OF CALIFORNIA
8
9 RENEE C. MENDOZA, CASE NO. 1:19-cv-01156-DAD-SKO
10 Plaintiff, FIRST SCREENING ORDER
11 (Doc. 1)
v.
12 21-DAY DEADLINE
MACY’S INC.,
13
Defendant.
14
15
16
I. INTRODUCTION
17
18 On August 23, 2019, Plaintiff, proceeding pro se, filed a civil complaint against Defendant
19 Macy’s Inc. (Doc. 1.) Plaintiff alleges claims under Title VII of the Civil Rights Act of 1964 (“Title
20 VII”), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act (“ADEA”), 29
21 U.S.C. § 621 et seq., related to her suspension and subsequent demotion from a full-time position
22 to part-time. (Id. at 5–6.) Plaintiff seeks compensatory damages in the amount of $100,000, plus
23 one-week pay for lost wages during her suspension. (Id. at 6.) Plaintiff also filed an application to
24 proceed in forma pauperis, which was granted on September 4, 2019. (Docs. 2, 3.)
25 Plaintiff’s complaint is now before the Court for screening. The Court finds Plaintiff has
26 not stated a cognizable claim, but may be able to correct the deficiencies in her pleading. Thus,
27 Plaintiff is provided the pleading and legal standards for her claims and is granted leave to file a
28 first amended complaint.
1 A. Screening Requirement and Standard
2 The Court is required to screen complaints in cases where the plaintiff is proceeding in forma
3 pauperis. 28 U.S.C. § 1915(e)(2). Plaintiff’s complaint, or any portion thereof, is subject to
4 dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted,
5 or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 28
6 U.S.C. § 1915(e)(2)(B). If the Court determines that the complaint fails to state a claim, leave to
7 amend may be granted to the extent that the deficiencies of the complaint can be cured by
8 amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).
9 The Court’s screening of the complaint is governed by the following standards. A complaint
10 may be dismissed as a matter of law for failure to state a claim for two reasons: (1) lack of a
11 cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. See Balistreri v.
12 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). Plaintiff must allege a minimum factual
13 and legal basis for each claim that is sufficient to give each defendant fair notice of what Plaintiff’s
14 claims are and the grounds upon which they rest. See, e.g., Brazil v. U.S. Dep’t of the Navy, 66 F.3d
15 193, 199 (9th Cir. 1995); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).
16 B. Pleading Requirements
17 Under Federal Rule of Civil Procedure 8(a), a complaint must contain “a short and plain
18 statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2).
19 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of
20 action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,
21 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In determining
22 whether a complaint states a claim on which relief may be granted, allegations of material fact are
23 taken as true and construed in the light most favorable to the plaintiff. See Love v. United States,
24 915 F.2d 1242, 1245 (9th Cir. 1989). Moreover, since Plaintiff is appearing pro se, the Court must
25 construe the allegations of his complaint liberally and must afford Plaintiff the benefit of any doubt.
26 See Karim–Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). However, “the
27 liberal pleading standard . . . applies only to a plaintiff’s factual allegations.” Neitzke v. Williams,
28 490 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not supply
1 essential elements of the claim that were not initially pled.” Bruns v. Nat’l Credit Union Admin.,
2 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir.
3 1982)).
4 Further, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
5 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of
6 action will not do . . . . Factual allegations must be enough to raise a right to relief above the
7 speculative level.” See Twombly, 550 U.S. at 555 (internal citations omitted); see also Iqbal, 556
8 U.S. at 678 (To avoid dismissal for failure to state a claim, “a complaint must contain sufficient
9 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has
10 facial plausibility when the plaintiff pleads factual content that allows the court to draw the
11 reasonable inference that the defendant is liable for the misconduct alleged.”) (internal citations
12 omitted).
13 II. DISCUSSION
14 A. Plaintiff’s Allegations
15
Plaintiff alleges that Defendant violated her civil rights and discriminated against her in
16
response to her “cooperation in [a] lawsuit against [Defendant] previously.” (Doc. 1 at 5.) Plaintiff
17
alleges that on March 5, 2019, she was “told to sign a form of suspension” but refused to sign it,
18
and “later [her] full-time position was lost.” (Id.) Plaintiff claims this action prevented her from
19
20 earning a living wage, caused her to lose her benefits, and created a hostile work environment for
21 her where she was made to feel not welcome at her job. (See id.)
22 Plaintiff contends that Defendant’s action in suspending and later demoting her was
23
discriminatory and in violation of Title VII and the ADEA. (See id. at 5–6.)
24
25
26
27
28
1
2 1. Title VII Discrimination
3 a. Disparate Treatment
4 Title VII states that it is an unlawful employment practice for an employer to discriminate
5
against an employee because of her “race, color, religion, sex, or national origin.” 42 U.S.C. §
6
2000e–2(b). To establish a prima facie case of intentional discrimination or “disparate treatment”1
7
under Title VII, a plaintiff must show that: “(1) he is a member of a protected class; (2) he was
8
qualified for his position; (3) he experienced an adverse employment action; and (4) similarly
9
10 situated individuals outside his protected class were treated more favorably, or other circumstances
11 surrounding the adverse employment action give rise to an inference of discrimination.” Peterson
12 v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004); see also Raad v. Fairbanks North Star
13
Borough School Dist., 323 F.3d 1185, 1195–96 (9th Cir. 2003) (citing McDonnell Douglas Corp. v.
14
Green, 411 U.S. 792 (1973)).
15
At the pleading stage, a plaintiff is not required to allege specific facts establishing each of
16
these four elements to make out the type of prima facie case required at the evidentiary stage.
17
18 Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510 (2002); see also Bell Atlantic Corp. v. Twombly,
19 550 U.S. 544, 569–70 (2007) (reaffirming Swierkiewicz). The plaintiff must, however, allege facts
20
sufficient to put the defendant on fair notice of the basis for the claims, including, for example, that
21
the plaintiff’s employer discriminated against the plaintiff because of their race, color, religion, sex,
22
or national origin and facts to support that assertion, and at least some facts regarding the adverse
23
24
1 A plaintiff may also allege a Title VII discrimination claim under a theory of “disparate impact.” See Harris v. City
25 of Fresno, 625 F. Supp. 2d 983, 995 (E.D. Cal. May 26, 2009). Under that theory, the plaintiff must: “(1) show a
significant disparate impact on a protected class or group; (2) identify the specific employment practices or selection
26 criteria at issue; and (3) show a causal relationship between the challenged practices or criteria and the disparate impact.”
Id. Plaintiff does not appear to allege a “disparate impact” claim, and in any event does not allege facts sufficient to put
27 Defendant on notice of a disparate impact claim and does not show that she alleged sufficient facts in her Equal
Employment Opportunity Commission (“EEOC”) charge to put Defendant on notice of the claim. See Goethe v. Dept.
28 of Motor Vehicles, No. 2:07-CV-01945-MCE-GGH, 2008 WL 489554, at *5 (E.D. Cal. Feb. 20, 2008) (a plaintiff’s
1
2 534 U.S. at 514; see also Fresquez v. County of Stanislaus, No. 1:13-cv 1897-AWI-SAB, 2014 WL
3 1922560, at *2 (E.D. Cal. May 14, 2014) (“[W]hile a plaintiff need not plead facts constitut[ing] all
4 elements of a prima facie employment discrimination case [] to survive a motion to dismiss, courts
5
look to those elements . . . so as to decide, in light of judicial experience and common sense, whether
6
the challenged complaint contains sufficient factual matter, accepted as true, to state a [plausible]
7
claim to relief.”).
8
Here, the Court finds that Plaintiff has not pleaded sufficient facts to put Defendant on fair
9
10 notice of the claims of discrimination against it. First, Plaintiff has not pleaded that she was
11 discriminated against based on her “race, color, religion, sex, or national origin” as required under
12 Title VII. See 42 U.S.C. § 2000e–2(b). Although Plaintiff also cites the ADEA, to the extent
13
Plaintiff is claiming she was discriminated against based on her age, Title VII does not apply to age
14
discrimination. See Walker v. U.S. Dept. of Commerce, No. 1:11-CV-01195 AWI SKO, 2012 WL
15
1424495, at *6 (E.D. Cal. Apr. 24, 2012) (citing Ahlmeyer v. Nevada Sys. of Higher Educ., 55 F.3d
16
1051, 1058 (9th Cir. 2009)). Second, Plaintiff does not allege that the adverse employment action—
17
18 her demotion and suspension—occurred because of her membership in a particular class, but only
19 alleges that her “civil rights were violated by the way [she] was treated.” (Doc. 1 at 6.) In an
20
amended complaint, Plaintiff must allege at least some additional facts regarding the events leading
21
up to the adverse employment action, to give Defendant fair notice of how Plaintiff claims she was
22
discriminated against. See Swierkiewicz, 534 U.S. at 514.
23
b. Hostile Work Environment
24
25 Title VII also allows an employee to bring a claim under a “hostile work environment”
26 theory. See Guthrie v. Hurwitz, No. 1:18-cv-282 AWI-BAM, 2018 WL 6460093, at *4 (E.D. Cal.
27 Dec. 10, 2018). To establish a discrimination claim under this theory, the plaintiff must show (1)
28
1
2 Id. (citing Arizona ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189, 1206 (9th Cir. 2016)). As with
3 a disparate treatment claim under Title VII, the plaintiff need not establish each of these elements
4 to survive the pleadings stage, but “the Court must consider the elements when determining if the
5
complaint contains sufficient factual matter, accepted as true, to state a plausible claim for relief.”
6
Id. (citations omitted). The plaintiff must allege “specific facts that constitute a hostile work
7
environment” and must allege that the environment was created because of the plaintiff’s “race,
8
color, religion, sex, or national origin.” See Morgan v. Napolitano, No. CIV. S-09-2649 LKK/DAD,
9
10 2010 WL 3749260, at *4 (E.D. Cal. Sept. 23, 2010); 42 U.S.C. § 2000e–2(b).
11 Here, Plaintiff alleges “the incident” created a “hor[ri]ble work environment” for her and
12 that she was “told to go on call and made to feel not welcome” at her job. (Doc. 1 at 5.) This is
13
insufficient to state a claim for Title VII discrimination under a hostile work environment theory.
14
Plaintiff does not claim that the alleged hostile work environment was created because of
15
her “race, color, religion, sex, or national origin,” does not allege specific facts about the allegedly
16
hostile work environment, and does not allege facts to support that whatever actions constituted a
17
18 hostile work environment were “sufficiently severe or pervasive to alter the conditions of her
19 employment.” See Guthrie, 2018 WL 6460093, at *4; 42 U.S.C. § 2000e–2(b); Morgan, 2010 WL
20
3749260, at *4. To set forth a cause of action, Plaintiff must allege more facts to state a claim under
21
a hostile work environment theory.
22
2. Title VII Retaliation
23
The anti-retaliation provision of Title VII prohibits retaliatory employment actions against
24
25 an employee because he has “opposed any practice made an unlawful employment practice by [Title
26 VII], or because he has made a charge, testified, assisted, or participated in any manner in an
27 investigation, proceeding, or hearing [pursuant to Title VII.]” 42 U.S.C. § 2000e–3. “To establish
28
1
2 plaintiff’s protected activity and the adverse employment action.” Poland v. Chertoff, 494 F.3d
3 1174, 1179–80 (9th Cir. 2007).
4 Plaintiff has also failed to allege sufficient facts to put Defendant on notice of a potential
5
Title VII retaliation claim. Plaintiff alleges in the complaint that she experienced an adverse
6
employment action based on her “cooperation in [a] lawsuit against her employer previously” but
7
does not give any details about her cooperation or about the lawsuit. (See Doc. 1 at 5.) Plaintiff
8
may be able to make out a claim for Title VII retaliation, but must allege facts demonstrating that
9
10 the lawsuit, with which she cooperated, was brought under Title VII. See Morgan v. Napolitano,
11 No. CIV. S-09-2649 LKK/DAD, 2010 WL 2219200, at *6 (E.D. Cal. June 1, 2010) (“[P]laintiff
12 must allege facts that demonstrate that these EEO complaints were brought under Title VII.
13
Specifically, these employees must have brought claims alleging discrimination because of race,
14
color, religion, sex, or national origin.”). Plaintiff must also allege facts regarding her involvement
15
in the lawsuit and that she “opposed” an employment practice made unlawful under Title VII. See
16
id.; 42 U.S.C. § 2000e–3. Without these allegations, Plaintiff fails to state a claim for Title VII
17
18 retaliation.
19 C. Plaintiff Fails to State a Cognizable Claim under the ADEA
20
1. ADEA Discrimination
21
a. Disparate Treatment
22
The ADEA makes it illegal for an employer:
23
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate
24
against any individual with respect to his compensation, terms, conditions, or
25 privileges of employment, because of such individual’s age;
26 (2) to limit, segregate, or classify his employees in any way which would deprive or
tend to deprive any individual of employment opportunities or otherwise adversely
27 affect his status as an employee, because of such individual’s age; or
28
1 29 U.S.C. § 623(a). To establish a prima facie case of age discrimination under the disparate
2
treatment theory of the ADEA2 a plaintiff must show she: “(1) was a member of the protected class
3
(aged 40 or older); (2) was performing [her] job satisfactorily; (3) was discharged; and (4) was
4
replaced by a substantially younger employee with equal or inferior qualifications or some other
5
6 circumstances that would lead to an inference of age discrimination.” Brazill v. California
7 Northstate College of Pharmacy, LLC, 904 F. Supp. 2d 1047, 1052 (E.D. Cal. Oct. 24, 2012) (citing
8 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000); Rose, 902 F.2d at 1421).3 A
9
plaintiff may also state a claim under the ADEA by alleging he or she was demoted, instead of
10
discharged. See Jones v. Lehigh Southwest Cement Co., Inc., No. 1:12-cv-0633 AWI JLT, 2013
11
WL 3006418, at *6 (E.D. Cal. June 14, 2013) (citing O’Connor v. Counsol. Coin Caterers Corp.,
12
517 U.S. 308, 310 (1996)).
13
14 Plaintiff fails to state a claim under the ADEA. First, Plaintiff does not allege her age in the
15 complaint or whether she is in the protected class of people over the age of forty, and does not allege
16
that the person who replaced her after she was demoted was younger and of an age that is outside
17
the protected class. See Jones, 2013 WL 3006418, at *6 (“Plaintiff’s ADEA claim was dismissed
18
from the original complaint because Plaintiff failed to allege his own age; the claim was dismissed
19
from the First Amended Complaint because Plaintiff failed to allege that the person who replaced
20
21 him was outside the protected class.”). Additionally, Plaintiff does not allege that she was replaced
22 at all. (See generally Doc. 1.) Because “the ADEA is more circumscribed” than Title VII, an ADEA
23
24
2 There is also a disparate impact theory under the ADEA, but Plaintiff does not appear to allege her ADEA claim under
25 a disparate impact theory. Under the disparate impact theory, the plaintiff must actually allege facts about the disparate
impact and how it manifested, in addition to the factors of the disparate treatment theory, and show that the disparate
26 impact claim was alleged in the EEOC charge to put the defendants on notice of it. See Rose v. Wells Fargo & Co., 902
F.2d 1417, 1421 (9th Cir. 1990); Goethe, 2008 WL 489554, at *5.
27 3 As with claims brought under Title VII, “[a] plaintiff in an ADEA case is not required to plead a prima facie case of
discrimination in order to survive a motion to dismiss” or screening of the complaint. See Sheppard v. David Evans &
28 Assoc., 694 F.3d 1045, 1050 n.2 (9th Cir. 2012). However, if the “plaintiff pleads a plausible prima facie case of
1
2 not within the age range protected by the ADEA.” Jones, 2013 WL 3006418, at *6. Thus, Plaintiff
3 must plead those facts in the amended complaint to sufficiently allege an ADEA claim.
4 b. Hostile Work Environment
5
As with a claim under Title VII, to establish an ADEA claim under a hostile work
6
environment theory, a plaintiff must show (1) verbal or physical conduct of a harassing nature that
7
was “(2) unwelcome and (3) sufficiently severe or pervasive to alter the conditions of her
8
employment and create an abusive working environment.” See Guthrie, 2018 WL 6460093, at *4.
9
10 The plaintiff must also allege “specific facts that constitute a hostile work environment” and must
11 allege that the environment was created because of the plaintiff’s age. See Morgan, 2010 WL
12 3749260, at *4. As stated above, Plaintiff fails to allege sufficient facts regarding the alleged hostile
13
work environment, and she also fails to allege that it was created because of her age. Accordingly,
14
Plaintiff fails to state a claim for an ADEA violation based on a hostile work environment theory.
15
2. ADEA Retaliation
16
To establish a prima facie case of retaliation under the ADEA, as with a Title VII retaliation
17
18 claim, the plaintiff “must establish (1) that he engaged in a protected activity; (2) that he suffered
19 an adverse employment decision; and (3) that a causal link exists between the protected activity and
20
the employment decision.” Whitshitt v. Barbosa, No. CIV S-06-0397 MCE JFM PS, 2007 WL
21
1725487, at *3 (E.D. Cal. June 14, 2007) (citing Lyons v. England, 307 F.3d 1092, 1118 (9th Cir.
22
2002)).
23
Plaintiff fails to state a claim for ADEA retaliation for similar reasons that she fails to state
24
25 a Title VII retaliation claim—namely, Plaintiff does not allege that the lawsuit against her employer
26 with which she “cooperated,” was a lawsuit based on ADEA violations or that she made any
27 complaints about age discrimination exhibited by her employer. See Poland, 494 F.3d at 1179.
28
1
2 those assertions), to state a retaliation claim under the ADEA. See Whitsitt, 2007 WL 1725487, at
3 *3.
4 D. Exhaustion of Administrative Remedies
5
Plaintiff attaches to the complaint a copy of a right to sue letter issued to her by the EEOC
6
on May 23, 2019, as well as a corresponding informational page. (Doc. 1 at 7–8.) However, Plaintiff
7
does not attach the charge filed with the EEOC or allege a description of the charge in her complaint.
8
Title VII requires a plaintiff to file an administrative claim with the EEOC against an
9
10 employer within one hundred and eighty days after the alleged unlawful employment practice
11 occurred. 42 U.S.C. § 2000e–5. The EEOC then issues a “right-to-sue” notice permitting a civil
12 action to be brought against the employer within ninety days. Id. § 2000e – 5(f)(1). Substantial
13
compliance with the administrative exhaustion process is a jurisdictional prerequisite to the filing
14
of a civil action against that employer under federal law. See Sommatino v. United States, 255 F.3d
15
704, 708 (9th Cir. 2001) (Title VII). The scope of the claims presented to the EEOC by way of
16
formal charge determines the permissible scope of the claims that may be presented in the district
17
18 court. Leong v. Potter, 347 F.3d 1117, 1121–22 (9th Cir. 2003). The same concepts apply to claims
19 brought under the ADEA. See Whisitt v. Hedy Holmes Staffing Services, No. 2:13-cv-0117-MCE-
20
AC, 2014 WL 5019667, at *4–5 (E.D. Cal. Oct. 7, 2014) (“The scope of the [ADEA claims raised
21
in the] EEOC complaint determines the permissible scope of the claims that may be presented in
22
district court.”).
23
Here, Plaintiff did not attach the original EEOC charge to the complaint or set forth the
24
25 contents of the charge in the complaint. The right-to-sue letter attached to the complaint, however,
26 indicates that Plaintiff filed a charge with the EEOC at some point. (See Doc. 1 at 7–8.) To
27 sufficiently allege exhaustion of administrative remedies, Plaintiff “must allege the facts relevant to
28
1
2 1:16-cv-00963-AWI-SKO, 2016 WL 3906913, at *3 (E.D. Cal. July 18, 2016) (quoting Whitsitt,
3 2014 WL 5019667, at *3). In the absence of this information, the Court cannot determine whether
4 Plaintiff has exhausted her administrative remedies as to the conduct alleged in the complaint, and
5
whether it has jurisdiction to proceed with the case under Title VII or the ADEA. Thus, Plaintiff
6
must either allege sufficient facts about the charge in the complaint, or attach the charge itself as an
7
exhibit. Leave to amend will be granted to allow Plaintiff to include this information with her
8
amended complaint.
9
10
III. CONCLUSION AND ORDER
11
Plaintiff has failed to state a plausible claim for relief under Title VII or the ADEA.
12
Therefore, her complaint is subject to sua sponte dismissal pursuant to 28 U.S.C. §§
13
1915(e)(2)(b)(ii). See Lopez, 203 F.3d at 1126–27.
14
As noted above, the Court will provide Plaintiff with an opportunity to amend her claims
15
and cure, to the extent possible, the identified deficiencies. See id. at 1130. Plaintiff may not change
16
the nature of this suit by adding new, unrelated claims in her amended complaint. See George v.
17
Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).
18
Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state sufficient
19
information to make out a claim under Title VII and/or the ADEA, Iqbal, 556 U.S. at 678–79.
20
Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief
21
above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted). Finally, Plaintiff
22
is advised that an amended complaint supersedes the original complaint. Lacey v. Maricopa Cty.,
23
693 F.3d 896, 927 (9th Cir. 2012) (en banc). Therefore, Plaintiff’s amended complaint must be
24
“complete in itself without reference to the prior or superseded pleading.” See E.D. Cal. L.R. 220.
25
Based on the foregoing, it is HEREBY ORDERED that:
26
1. Plaintiff is granted leave to file a first amended complaint; and
27
2. Within twenty-one (21) days from the date of service of this order, Plaintiff must file
28
1 or a notice of voluntary dismissal.
2 If Plaintiff fails to file an amended complaint in compliance with this order, the
3 undersigned will recommend to the assigned district judge that this action be dismissed for
4 failure to state a claim and to obey a court order.
5
IT IS SO ORDERED.
6
Sheila K. Oberto
7 Dated: September 19, 2019 /s/ .
UNITED STATES MAGISTRATE JUDGE
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28