Opinion
CV-22-0464-PHX-JFM
05-25-2022
Leonso Castro, Plaintiff v. Food City, Defendant.
REPORT & RECOMMENDATION TO HON. STEPHEN M. MCNAMEE
JAMES F. METCALF UNITED STATES MAGISTRATE JUDGE
This matter is before the undersigned magistrate judge awaiting consents pursuant to 28 U.S.C. § 636(c). Because the appropriate resolution of the screening of the First Amended Complaint is dispositive of claims or defenses, the undersigned proceeds by way of a Report & Recommendation to Senior District Judge McNamee, pursuant to 28 U.S.C. § 636(b)(1)(B) and General Order 21-25.
A. SCREENING OF COMPLAINT
1. Screening Required
Plaintiff has been granted in forma pauperis status. (Order 4/19/22, Doc. 9.) Following a dismissal with leave to amend (Order 5/16/22, Doc. 11), Plaintiff has filed a First Amended Complaint (Doc. 12).
In cases filed by persons appearing in forma pauperis the court is required by 28 U.S.C. § 1915(e)(2) to dismiss cases that are frivolous, malicious, fail to adequately state a claim, or seek monetary relief from a defendant who is immune.
2. Pleading Standards
A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the - defendant- unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other “more likely explanations” for a defendant's conduct. Id. at 681.
“The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Iqbal, 556 U.S. at 678.
Reasonable inferences can be drawn from the facts. “Iqbal demands more of plaintiffs than bare notice pleading, but it does not require us to flyspeck complaints looking for any gap in the facts.” Lacey v. Maricopa County, 693 F.3d 896, 924 (9th Cir. 2012).
And, as the United States Court of Appeals for the Ninth Circuit has instructed, courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards than formal pleadings drafted by lawyers.'” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).
3. Original Complaint
In his original Complaint (Doc. 1) Plaintiff named as Defendant Food City, and asserted claims for employment discrimination under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e to 2000e-17, and under the Americans with Disabilities Act of 1990 (42 U.S.C. § 12112 to 12117).
On screening, the Court dismissed Plaintiff's Title VII claim for failure to adequately state a claim because Plaintiff failed to allege any facts to show discrimination on covered bases (i.e. “race, color, religion, sex, or national origin”) and instead asserted discrimination on “disability or perceived disability.” The Court dismissed Plaintiff's ADA claim because Plaintiff did not allege any facts to show disability within the meaning of the ADA (indicting only that he suffers from asthma), failed to allege that ability to perform the job with or without accommodations, and failed to describe any reasonable accommodations necessary to allow him to do so. Finally, the Court dismissed Plaintiff's ADA protected conduct claim because failed to allege he was involved in an “investigation, proceeding or hearing” under the ADA, and failed to allege facts to show he was subjected to an adverse employment action in retaliation. (Report & Recommendation 4/26/22, Doc. 10; Order Adopting 5/16/22, Doc. 11.)
4. First Amended Complaint
In his First Amended Complaint (“FAC”) (Doc. 12) Plaintiff again names as Defendant Food City, and again asserts claims for employment discrimination under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e to 2000e-17, and the Americans with Disabilities Act of 1990 (42 U.S.C. § 12112 to 12117), and adds claims of discrimination under the FMLA for unpaid vacation and other pay.
Plaintiff alleged that Defendant engaged in the following discriminatory conduct: failure to hire (and “rehire”), termination of employment, failure to accommodate his disability, unequal terms and conditions of employment, and retaliation. He adds allegations of “unpaid wages and FMLA unapproved.” He again alleges the discriminatory conduct occurred between July 4, 2018 and August 20, 2020, and is continuing. He asserts discrimination occurred on the basis of a “disability on asthma and doctor's appointment.” He asserts he filed a charge with the Equal Employment Opportunity Commission or his Equal Employment Opportunity counselor regarding this conduct on May 6, 2019. He now asserts no Notice of Right to Sue Letter has issued. He asserts he was harassed by being called explicit names, and was told he could no longer work at the deli department, and was terminated and refused rehire in retaliation for his “complaint for my civil rights and disability and for unpaid wages.” He asserts damages for 20 hours of vacation pay and 12 hours of “Pers Retail hours.” In addition, he asks for “emotional damages.”
The failure to allege exhaustion of the administrative right-to-sue requirement does not result in failure to adequately state a claim. See Fort Bend Cty., Texas v. Davis, 139 S.Ct. 1843 (2019) (Title VII's administrative exhaustion requirement is not jurisdictional, and subject to waiver). “Courts have consistently applied Fort Bend's holding to ADA claims.” Krupa v. 5 & Diner N 16th St. LLC, No. CV-20-00721-PHX-JJT, 2020 WL 7705986, at *2 (D. Ariz. Dec. 28, 2020).
5. Civil Rights Act Discrimination
Title VII of the Civil Rights Act of 1964 only provides remedies for discrimination on the basis of “race, color, religion, sex, or national origin, ” 42 U.S.C. § 2000e-2, (“status-based discrimination”) or for opposition to such discrimination or complaints alleging such discrimination, 42 U.S.C. § 2000e-3, (“protected employee conduct” discrimination). Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 347 (2013). Plaintiff's FAC still fails to allege any facts to show discrimination based on “race, color, religion, sex, or national origin, ” or retaliation for “protected employee conduct” with respect to discrimination on those bases. Indeed, in asserting the bases for discrimination in Paragraph III(D) of the FAC, he again indicates only “disability or perceived disability.” (Doc. 12 at 4.) Accordingly, Plaintiff fails to adequately state a claim under Title VII, and this claim should be dismissed.
6. ADA Discrimination
To state a claim for adverse employment action under the ADA, Plaintiff must adequately allege: (1) that he is a disabled person within the meaning of the ADA; (2) that he is qualified, that is, with or without reasonable accommodation (which he must describe), he is able to perform the essential functions of the job; and (3) that the employer took adverse employment action because of his disability. Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996). “A ‘disability' is a ‘physical or mental impairment that substantially limits one or more of the major life activities of such individual.'” Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1133 (9th Cir. 2001).
Here, Plaintiff again does not allege any facts to show disability within the meaning of the ADA. At most, he asserts he suffers from asthma and was required to see a doctor, but alleges nothing to suggest that this condition limits any major life activity. He also again fails to allege that he was able to perform the job, with or without accommodations, nor does he describe any reasonable accommodations necessary to allow him to do so. At most, Plaintiff adequately alleges adverse employment action on the basis of his condition.
Accordingly, Plaintiff fails to adequately state a claim of ADA discrimination, and this claim should be dismissed.
7. ADA Protected Conduct
To state a claim for adverse action for protected employee conduct under the ADA, Plaintiff must adequately allege that: “(1) [he] engaged in a protected activity; (2) suffered an adverse employment action; and (3) there was a causal link between the two.” Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004). Protected activity is that the “individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the ADA].” 42 U.S.C. § 12203(a). Here, Plaintiff now alleges that he suffered retaliation “for my complaint on this case, ” i.e. that he was “terminated” and was not rehired. A reasonable inference is that Plaintiff is alleging that the referenced complaint included Plaintiff's ADA claims. However, Plaintiff alleges no facts to show that he was terminated as a result of making an ADA complaint. Instead, he alleges he was terminated for seeking FMLA benefits. (FAC, Doc. 12 at 5.) Indeed, the only ADA complaint he references is that made to the Equal Employment Opportunity Commission or his Equal Employment Opportunity counselor on May 6, 2019. (Id.) This was long after Plaintiff alleges he was terminated. Although Plaintiff generally alleges he was denied rehiring and such denial has continued, he alleges no facts to show that he actually sought rehire after his ADA complaint.
Accordingly, Plaintiff fails to adequately state a claim of protected conduct retaliation or discrimination under the ADA.
8. FMLA Denial
Plaintiff lists unpaid wages under the FMLA as a basis for his claims of discrimination, and alleges he was terminated and not rehired because he complained about such matters. In general, the FMLA entitles an eligible employee to a total of twelve weeks of leave during any twelve-month period because of, inter alia, the employee's own serious health condition if the employee is unable to perform his or her job functions. 29 U.S.C. § 2612(a)(1).
Here, Plaintiff does not explicitly allege an inability to perform his work because of a serious health condition.
The term “serious health condition” means an illness, injury, impairment, or physical or mental condition that involves-- (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.28 U.S.C. § 2611(11). Plaintiff makes no allegations that he required inpatient care as a result of his asthma. Nor does he offer any explicit allegations that he was subject to “continuing treatment.” However, the regulations broadly define “continuing treatment” to include a variety of regular treatments of an incapacitating condition. 29 C.F.R. § 825.102. A reasonable inference from Plaintiff's allegations are that his asthma at least occasionally constituted a serious health condition, and required continuing treatment, and as result he was unable to perform his work and sought and was denied FMLA leave.
However, employees are entitled to FMLA benefits only if they have been employed “for at least 12 months by the employer with respect to whom leave is requested.” 29 U.S.C. § 2611(2)(A)(i). Here, Plaintiff does not allege he was so employed, and the pay stub from October 12, 2018 that he appends to his Complaint reflects his most recent hire date was September 29, 2017. He alleges the events occurred in July and August, 2018. It is true that the “12 months an employee must have been employed by the employer need not be consecutive months.” 29 C.F.R. § 825.110. That same pay stub reflects that Plaintiff's original hire date was August 24, 2016. However, Plaintiff makes no other allegations that would permit a reasonable inference that he had an aggregate of 12 months employment and thus qualified for coverage under the FMLA.
That pay stub reflects a most recent hire date of September 29, 2017, which was after the dates Plaintiff alleges his termination occurred. (Doc. 12 at 9.)
Further, employees are entitled to FMLA benefits only if they have been employed “for at least 1, 250 hours of service with such employer during the previous 12-month period.” 29 U.S.C. § 2611(2)(A)(ii). Plaintiff makes no allegation that he had been so employed. His attached paystub reflects that as of October 12, 2018 he had earned gross year to date pay of only $7,983.48. His rate of pay was identified as $12.60. This would reflect he had worked only 633 hours, or approximately 70 hours per month. Even if the Court could reasonably infer a comparable rate of work since his most recent hire date of September 29, 2017, this would equate to less than 800 work hours.
Accordingly, Plaintiff fails to adequately state a claim for wrongful denial of FMLA benefits, and this claim must be dismissed.
9. FMLA Interference/Discrimination
Plaintiff further alleges that as a result of his complaints about receiving FMLA leave, he was terminated and not rehired. An employer may not interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right available under the FMLA, or discriminate against an individual for opposing any practice made unlawful under the FMLA. 29 U.S.C. § 2615(a)(1) and (2). But adverse employment action for taking leave constitutes interference or discrimination under the FMLA only “[i]f those absences were, in fact, covered by the Act.” Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1126 (9th Cir. 2001). For the reasons addressed hereinabove, Plaintiff fails to adequately allege facts to show that his absences were covered by the FMLA.
Accordingly, Plaintiff fails to adequately state a claim for FMLA interference or discrimination, and this claim must be dismissed.
10. Unpaid Wages
Plaintiff alleges he has unpaid wages for vacation and other (“Retail pers”) hours. Apart from the claims discussed hereinabove, Plaintiff does not suggest the legal basis for this claim.
The Fair Labor Standards Act 29 U.S.C. § 201 et seq. applies to the payment of wages. However, it only provides a private right of action to recover unpaid minimum wages for work performed and unpaid “overtime” pay, 29 U.S.C. § 216(b), not other forms of compensation such as vacation pay. See Trejo v. Ryman Hosp. Properties, Inc., 795 F.3d 442, 446 (4th Cir. 2015) (no FLSA right of action for unpaid tips, only unpaid minimum wages or overtime).
Ordinarily, unpaid wages claims arise only under state contract or employment law. See e.g. Ariz. Rev. Stat. § 23-353(A) (discharged employees wages due within 7 days); Crum v. Maricopa Cnty., 190 Ariz. 512, 950 P.2d 171 (Ariz. App. 1997) (applying § 23-253(A) to delay in payment of accrued vacation and sick leave).
Nothing herein is intended to suggest Plaintiff could not seek relief on his state law claims by an action filed in the Arizona courts.
However, this Court does not have jurisdiction over state law claims, except for its discretion to exercise supplemental jurisdiction of over state law claims raised in connection with federal claims part of the same case or controversy over which the Court has original jurisdiction. 28 U.S.C. § 1367(a). Here, however, Plaintiff has failed to adequately allege a federal claim.
Accordingly, Plaintiff's unpaid wage claim must be dismissed.
11. Dismissal with Leave to Amend
Plaintiff fails to adequately state any claim for relief over which this Court has jurisdiction. Accordingly, the Complaint should be dismissed without prejudice.
When a complaint is dismissed under section 1915(e) (or 1915A), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is absolutely clear from the face of the complaint that the deficiencies could not be cured by amendment. See Rodriguez v. Steck, 795 F.3d 1187 (9th Cir. 2015) (order); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (dismissal as frivolous). Here, it is not clear that Plaintiff cannot cure the deficiencies for any of his claims by amendment. Accordingly, the Court should dismiss with leave to amend.
B. RECOMMENDATIONS
IT IS THEREFORE RECOMMENDED:
(A) Plaintiff's First Amended Complaint (Doc. 12) be DISMISSED WITH LEAVE TO AMEND.
(B) Plaintiff be given 21 days to file an amended complaint.
(C) If Plaintiff fails to timely file an amended complaint, that this case be DISMISSED WITHOUT PREJUDICE by the Clerk, without further notice or order.
C. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”