Opinion
Case No. 18-cv-04033-NC
11-13-2018
MARIA A. RIVERA, Plaintiff, v. FIRST STUDENT, Defendant.
REQUEST FOR REASSIGNMENT; REPORT AND RECOMMENDATION TO DISMISS CASE WITHOUT PREJUDICE FOR FAILURE TO STATE A CLAIM
Plaintiff Maria Rivera has submitted three complaints against defendant First Student, two of which the Court has screened under 28 U.S.C. § 1915 and dismissed with leave to amend. See Dkt. Nos. 1, 6, 8, 10. The Court now screens her third complaint under Fed. R. Civ. P. 8(a). See Dkt. No. 11. Because this complaint (a) still fails to plead necessary elements of her claims; (b) is barred by statutes of limitation; and (c) does not plead exhaustion of administrative remedies, the Court again finds that Ms. Rivera has failed to state a claim under Rule 8(a). The Court therefore REQUESTS that the clerk of court reassign this matter to a district judge and RECOMMENDS that the action be dismissed without prejudice.
I. BACKGROUND
The Court's previous two screening orders lay out the background of Ms. Rivera's claims, so the Court will not repeat those details here. See Dkt. Nos. 6, 10. In short, Ms. Rivera brings wrongful termination and retaliation claims for her discharge from a position as a bus driver which resulted from a failed drug test which she claims was caused by medical issues. See Dkt. Nos. 1, 8, 11. In its first screening under § 1915, the Court dismissed Rivera's complaint with leave to amend because she failed to establish subject matter jurisdiction, did not demand relief sought, did not show that she was part of a protected class or was engaging in protected activity when she was terminated, and because her claims seemed likely barred due to statutes of limitation and failure to exhaust administrative remedies. See Dkt. No. 6. Ms. Rivera's second complaint resolved the jurisdictional and damages issues, but not the others, so it too was dismissed with leave to amend. See Dkt. Nos. 8, 10.
II. MS. RIVERA'S THIRD COMPLAINT
Ms. Rivera's third complaint is for retaliation in addition to wrongful termination. The wrongful termination claim still suffers from the same insufficiencies as those the Court identified in previous screenings, and the retaliation claim is similarly insufficiently pleaded.
The third complaint also lists discrimination, "Article 14-18 (unusual punishment)," and "right - equality - employment" after these claims which the court interprets as relating somehow to the wrongful termination and retaliation claims. See Dkt. No. 11 at 2.
A. Wrongful Termination
As the Court noted in its two previous screenings, a wrongful termination claim must allege that the plaintiff was part of a protected class or was engaging in a protected act at the time of discharge. See Loggins v. Kaiser Permanent Intern., 151 Cal. App. 4th 1102, 1109 (2007); see also Dkt. No. 10 at 3-4. Ms. Rivera has added no new facts to her third complaint to plead either basis.
B. Retaliation
A claim for retaliation also requires pleading that the plaintiff was a member of a protected class or was engaged in a protected activity. See McCaskey v. Cal. State Automobile Assn., 189 Cal. App. 4th 947, 987 (2010). These facts are not alleged in the third complaint.
C. Timeliness and Exhaustion
The court previously noted that Ms. Rivera's complaint could only survive if she could allege facts that took place within the applicable time period under relevant statutes of limitation. See Dkt. No. 10 at 5. This period is between one and four years depending on the bases for her claims. Id. Ms. Rivera's third complaint adds no new facts from a more recent time period. See Dkt. No. 11. The relevant facts alleged all took place in approximately 2014. Therefore her claims are time-barred and should be dismissed. U.S. ex. rel. Air Control Techs., Inc. v. Pre Con Indus., Inc., 720 F.3d 1174, 1178 (9th Cir. 2013).
Ms. Rivera included in her third complaint some correspondence with a law firm in 2018 regarding a relevant California Supreme Court case against First Student. See Dkt. No. 11. Though this case and the related correspondence are from 2018, the facts which form the bases of Rivera's claims against First Student are still not from any later than 2014.
Additionally, the Court instructed Ms. Rivera that her complaint would be dismissed if she could not plead that she had exhausted her administrative remedies for Title VII and FEHA claims. See Dkt. No. 10 at 5. These statutes require that a plaintiff file a complaint and receive a final disposition from either the Equal Employment Opportunity Commission or the California Department of Fair Employment and Housing prior to filing suit in court. See Rodriguez v. Airborne Express, 265 F.3d 890, 897 (2001). Her third complaint includes no such allegation.
III. CONCLUSION
Because Ms. Rivera has not pleaded sufficient facts or exhausted administrative remedies for her two claims, and because they are time-barred, her third complaint should be DISMISSED without prejudice for failure to state a claim under Fed. R. Civ. P. 8(a). The defendant in this case has not consented to magistrate judge jurisdiction under 28 U.S.C. § 636(c), so the undersigned REQUESTS that the clerk of court reassign this matter to a district judge. The undersigned RECOMMENDS under Fed. R. Civ. P. 72(b)(1) that the action be dismissed without prejudice. Any party may object to this report and recommendation within 14 days of being served. Fed. R. Civ. P. 72.
IT IS SO ORDERED. Dated: November 13, 2018
/s/_________
NATHANAEL M. COUSINS
United States Magistrate Judge