Summary
recognizing that the pro se plaintiff failed to comply with Rule 15, but nevertheless treating her filing of an amended complaint as a request for leave to amend
Summary of this case from FLIR Sys. Inc. v. Sierra Media, Inc.Opinion
Civil No. 03-1688-JE.
September 15, 2004
ORDER
Pro se plaintiff Judith Ann Franco brings this employment discrimination action against defendant Sitel Corp. After defendant moved to dismiss the initial complaint, plaintiff filed an amended complaint. Defendant moves to strike plaintiff's amended complaint for failure to comply with Federal Rule of Civil Procedure 15.
I. Construing the Amended Complaint as a Motion
I construe plaintiff's amended complaint as a motion to file an amended complaint. Rule 15(a) does require leave to amend because defendant had filed a responsive pleading, but this court may treat plaintiff's lodging the amended complaint as her request for leave to amend. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). "[A] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Cook, Perkiss Liehe v. N. Cal. Collection Service, 911 F.2d 242, 247 (9th Cir. 1990). "[L]eave to amend, though within the discretion of the trial court, should be guided by the underlying purpose of Rule 15(a) of the Federal Rules of Civil Procedure, which was to facilitate decisions on the merits, rather than on technicalities or pleadings." James v. Pliler, 269 F.3d 1124, 1126 (9th Cir. 2001).
II. Claims for Discrimination and Retaliation
"[B]efore dismissing a pro se complaint the district court must provide the litigant with notice of the deficiencies in his complaint in order to ensure that the litigant uses the opportunity to amend effectively." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Here, the amended complaint has several deficiencies. It does adequately state claims for employment discrimination based on disability and failure to timely pay for vacation time.
In her first and third claims, plaintiff alleges violations of company policy. However, an employer's violations of its own policies, without more, cannot support an employment discrimination claim. Such violations would not be relevant unless plaintiff shows that the alleged violations of company policy were part of the alleged discrimination against her.
In her second claim, for retaliation, plaintiff fails to adequately allege the protected conduct in which she engaged. Under the Americans with Disabilities Act, "No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter." 42 U.S.C. § 12203(a). To state a prima facie case of retaliation, a plaintiff must show that (1) she was involved in a protected activity; (2) she suffered an adverse employment action; and (3) there was a causal link between (1) and (2). Brown v. City of Tucson, 336 F.3d 1181, 1187 (9th Cir. 2003).
CONCLUSION
Defendant's motion to dismiss, to strike, and for a more definite statement (#7) is denied as moot. Defendant's motion to strike (#13-1) is denied. Plaintiff is to file a second amended complaint within thirty days.