Summary
noting that “the Supreme Court recently held that damages for emotional distress are not recoverable under the Rehabilitation Act; it is therefore unlikely such damages are available under the ADA”
Summary of this case from Pennington v. Flora Cmty. Unit Sch. Dist. No 35Opinion
CIV 21-370-TUC-CKJ
08-03-2022
Dave Mazion Hill, Jr., Plaintiff, v. SRS Distribution Inc., Defendant.
ORDER
Cindy K. Jorgenson, United States District Judge.
On September 20, 2021, Plaintiff Dave Mazion Hill, Jr. ("Hill") filed a pro se complaint which includes allegations of discrimination based on race, age and disability, as well as retaliation, against Defendant SRS Distribution Inc ("SRS"). Hill seeks back pay, front pay, and damages for emotional distress.
Hill has also filed an Application to Proceed in District Court Without Prepaying of Fees or Costs (Doc. 2) and a Motion to Serve (Doc. 6)
I. Factual Allegations in Hill's Complaint
Hill alleges he was a trainer/supervisor at SRS for 7 U years. He further alleges SRS terminated his employment, used deception for the termination, and retaliated against him. He alleges the discriminatory acts took place from July 8, 2020, through October 27, 2020. On the Complaint form completed by Hill, he has selected the options that he was discriminated against based on race, age, and disability or perceived disability of a bulging disc.
Specifically, Hill alleges that, on August 4, 2020, and September 18, 2020, he contacted Human Resources. The Complaint implies Hill complained of back issues and racial remarks made by Kolten Menchan ("Menchan"). Hill was informed that there would be no retaliation. On October 8, 2020, Ryan Miles ("Miles") and Brad from Human Resources had a conference over Hill's complaints.
The spelling of Menchan's last name is not clear on the Complaint.
Hill alleges that, shortly thereafter, he was informed of a "fake' training. Hill states he was sent to Tempe, Arizona on October 23, 2020, for training on an articulating boom loader, but an articulating boom crane was at the training. Hill asserts he has photographs to establish the deception. He alleges he is NCCCO certified and appears to be stating he is also certified with ABL and ABC; it is not clear from the Complaint, but Hill appears to be implying these certifications support his allegation that the training was fake. Hill alleges SRS asserts Hill did not have a hard hat or high "viz" and left the training early. Hill alleges SRS's assertions are pretextual.
Hill has attached a Notice of Suit from the EEOC. This document does not include what claims Hill presented to the EEOC.
II. In Forma Pauperis (Doc. 2)
The Court may allow a plaintiff to proceed without prepayment of fees when it is shown by affidavit that she "is unable to pay such fees[.]" 28 U.S.C. § 1915(a)(1). Hill's statement, made under penalty of perjury, establishes that Hill is unable to pay the filing fees. The Application to Proceed in Forma Pauperis will be granted.
III. Screening Order
This Court is required to dismiss a case if the Court determines that the allegation of poverty is untrue, 28 U.S.C. § 1915(e)(2)(A), or if the Court determines that the action "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
A. General Requirements
A complaint is to contain a "short and plain statement of the claim showing that the pleader is entitled to relief[.]" Fed.R.Civ.P. 8(a). 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. However, especially where the pleader is pro se, the pleading should be liberally construed in the interests of justice. Johnson v. Reagan, 524 F.2d 1123 (9th Cir. 1975). Indeed, a "complaint [filed by a pro se plaintiff] 'must be held to less stringent standards than formal pleadings drafted by lawyers.'" Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
A complaint must set forth sufficient facts that serves to put defendants on notice as to the nature and basis of the claim(s). Furthermore, all allegations of a claim are to be set forth in numbered paragraphs that should be limited to a single set of circumstances. Fed.R.Civ.P. 10(a). "Each claim . . . shall be stated in a separate count . . . whenever a separation facilitates the clear presentation of the matters set forth." Id. Failure to set forth claims in such a manner places the onus on the court to decipher which, if any, facts support which claims, as well as to determine whether a plaintiff is entitled to the relief sought. Haynes v. Anderson & Strudwick, Inc., 508 F.Supp. 1303 (D.C.Va. 1981). Enforcement of this rule is discretionary with the Court, but such enforcement is appropriate where it is necessary to facilitate a clear presentation of the claims. See, Benoit v. Ocwen Financial Corp., Inc., 960 F.Supp. 287 (S.D.Fla. 1997), affirmed 162 F.3d 1177 (compliance with rule required where allegations were so confusing and conclusory, claims were commingled, and impossible to determine nature of claims).
B. Requirement that Action State a Claim on Which Relief Can be Granted
The United States Supreme Court has determined that, in order to survive a motion to dismiss for failure to state a claim, a plaintiff must allege "enough facts to state a claim to relief that is plausible on its facts." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). While a complaint need not plead "detailed factual allegations," the factual allegations it does include "must be enough to raise a right to relief above the speculative level." Id. at 555. Indeed, Fed.R.Civ.P. 8(a)(2) requires a showing that a plaintiff is entitled to relief "rather than a blanket assertion" of entitlement to relief. Id. at 555 n. 3. The complaint "must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right to action." Id. at 555. Although a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) has not been filed in this case, the Court considers these standards in screening Hill's Complaint to determine if Hill has "nudged [his] claims across the line from conceivable to plausible." Id. at 570. The Court also considers that the Supreme Court has cited Twombly for the traditional proposition that "[s]pecific facts are not necessary [for a pleading that satisfies Rule 8(a)(2)]; the statement need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Erickson v. Pardue, 551 U.S. 89 (2007).
In discussing Twombly, the Ninth Circuit has stated:
"A claim has facial plausibility," the Court explained, "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." 129 S.Ct. at 1949. "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." Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). "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.'" Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955).
In sum, for a complaint to survive a motion to dismiss, the non-conclusory "factual content," and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief. Id. Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009).
This Court must take as true all allegations of material fact and construe them in the light most favorable to Hill. See Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir. 2003). In general, a complaint is construed favorably to the pleader. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, 457 U.S. 800. Nonetheless, the Court does not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Furthermore, the Court is not to serve as an advocate of a pro se litigant, Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), in attempting to decipher a complaint.
If a court dismisses a complaint with leave to amend, the court is to provide reasons for the dismissal so a plaintiff can make an intelligent decision whether to file an amended complaint. See Bonanno v. Thomas, 309 F.2d 320 (9th Cir. 1962); Eldridge v. Block, 832 F.2d 1132 (9th Cir. 1987). Because the Court has found, infra, that dismissal of the claims is appropriate, the Court has determined it is appropriate to provide Hill with an opportunity to submit an amended complaint. The Court, therefore, will discuss the reasons for the dismissal of claims.
IV. Race Discrimination
To state a prima facie case of racial discrimination under Title VII, a plaintiff must allege:
(1) that the plaintiff belongs to a class of persons protected by Title VII; (2) that the plaintiff performed his or her job satisfactorily; (3) that the plaintiff suffered an adverse employment action; and (4) that the plaintiff's employer treated the plaintiff differently than a similarly situated employee who does not belong to the same protected class as the plaintiff.Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006). Other than the fact Hill alleges racial discrimination, there is no indication in the Complaint regarding Hill's race. In other words, as it is not known if Hill is Caucasian, Black, Hispanic, or some other race, the Complaint does not allege Hill is a member of a protected class of persons. The Complaint's statement that Hill was a trainer/supervisor for 7½ years does lead to the inference that Hill performed his job satisfactorily. Further, the Complaint does allege Hill was terminated, i.e., suffered an adverse action. However, the Complaint fails to allege Hill was treated differently from similarly situated persons. In other words, there are no factual allegations to support an inference Hill was terminated because of his race.
The Court considers that Hill may be attempting to state a claim for a hostile environment. To state a prima facie case of race discrimination based on a hostile work environment, Hill must allege "(1) he was 'subjected to verbal or physical conduct' because of his race, (2) 'the conduct was unwelcome,' and (3) 'the conduct was sufficiently severe or pervasive to alter the conditions of [Hill's] employment and create an abusive work environment.'" Manatt v. Bank of Am., NA, 339 F.3d 792, 798 (9th Cir.2003), quoting Kang v. U. Lim Am., Inc., 296 F.3d 810, 817 (9th Cir.2002). However, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment." Faragher v. Boca Raton, 524 U.S. 775, 786 (1998), internal citation omitted. Hill alleges Menchan made a racial remark. However, the Complaint does not allege what the comment was, whether it was an isolated comment or part of a pervasive atmosphere.
The Court finds Hill has failed to state a claim upon which relief can be granted as to race discrimination. The Court will dismiss this claim with leave to amend.
V. ADA Violations
The Americans with Disabilities Act ("ADA") prohibits discrimination against "a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). The ADA defines a "qualified individual" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). Further, a disability, with respect to an individual, means: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. § 12102(1).
To allege a prima facie employment termination case under the ADA, a plaintiff must state (1) he is disabled within the meaning of the ADA; (2) he is qualified to perform the essential functions of his job either with or without reasonable accommodation, and; (3) he was terminated or subjected to an adverse employment action because of his disability. Kenney v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996); see also Allen v. Pac. Bell, 348 F.3d 1113, 1114 (9th Cir. 2003).
Here, the section of the Complaint form that allows for selecting "failure to accommodate my disability" has not been selected. Further, the Complaint states Hill suffers from a bulging disc; the Court will infer from this statement that Hill is alleging he is disabled within the meaning of the ADA based on the bulging disc. Moreover, from Hill's position as a trainer/supervisor, it can be inferred that Hill was performing the essential functions of his job. However, other than stating that he complained about his back issues, Hill does not allege any facts from which the Court can infer Hill was terminated because of his disability. The Court finds Hill has failed to state a claim for disability discrimination and will dismiss this claim with leave to amend.
VI. Retaliation
Title VII prohibits an employer from "discriminating] against any of [its] employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.." 42 U.S.C. § 2000e-3(a). Title VII retaliation claims "require the plaintiff to prove that the employer acted with conscious intent to discriminate." McDonnell Douglas, 411 U.S. at 805-06; see also Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir.1987), citing Ruggles v. Cal. Polytechnic State Univ., 797 F.2d 782, 784 (9th Cir.1986)) (The McDonnell Douglas framework and allocation of proof that governs disparate treatment claims also governs retaliation claims.). Additionally, the ADA prohibits employers from "'retaliating against an employee who seeks accommodation in good faith.'" Coons v. Sec'y of U.S. Dept. of Treasury, 383 F.3d 879, 887 (9th Cir. 2004), citing Heisler v. Metro. Council, 339 F.3d 622 (8th Cir. 2003). Specifically, Hill must allege (1) engagement in a protected activity; (2) an adverse employment action; and (3) a causal link between the two. Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000).
Here, Hill alleges he complained of back issues and a racially charged comment by a co-worker. He also alleges he was then required to attend a "fake" training and was terminated thereafter. Additionally, the Court finds an inference is raised from the temporal proximity of Hill's complaints to the "fake" training and subsequent termination. See e.g., Porter v. California Dep't of Corr., 419 F.3d 885, 895 (9th Cir. 2005). The Court finds Hill has stated a claim of retaliation under Title VII and the ADA.
However, the EEOC Notice provided to the Court does not inform the Court whether Hill raised this claim with the EEOC. Discrimination claims are limited by the charge filed with the EEOC. Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636-38 (9th Cir. 2002). "Incidents of discrimination not included in an EEOC charge may not be considered by a federal court unless the new claims are like or reasonably related to the allegations contained in the EEOC charge." Green v. L.A. Cty. Superintendent, 883 F.2d 1472, 1475-76 (9th Cir. 1989), citation omitted. The Court, therefore, will dismiss this claim with leave to amend.
Hill is advised this requirement applies to his other claims as well.
VII. Age Discrimination
Hill's Complaint has the box referencing age discrimination marked. However, the Complaint does not include any factual allegations, including Hill's age, to support such a claim. To state a claim for age discrimination, Hill must allege (1) he was 40 to 70 years old; (2) he was performing his job in a satisfactory manner; (3) he was discharged; and (4) he was replaced by a sufficiently younger employee with equal or inferior qualifications. Moran v. Selig, 447 F.3d 748, 753 (9th Cir. 2006); Rose v. Wells Fargo & Co., 902 F.2d 1417, 1421 (9th Cir. 1990). The Court finds Hill has failed to state a claim upon which relief can be granted for age discrimination and will dismiss this claim with leave to amend.
VIII. Emotional Distress Damages
Hill's Complaint seek emotional distress damages. Hill is advised that emotional distress damages are not available under Title VII or the ADEA. Williams v. U.S. Gen. Servs. Admin., 905 F.2d 308, 311 (9th Cir. 1990); Cancellier v. Federated Dep't Stores, 672 F.2d 1312, 1318 (9th Cir. 1982). Additionally, the Supreme Court recently held that damages for emotional distress are not recoverable under the Rehabilitation Act; it is therefore unlikely such damages are available under the ADA. Cummings v. Premier Rehab Keller, P.L.L.C., 142 S.Ct. 1562, 1576 (2022).
IX. Motion to Serve
Hill requests the U.S. Marshal be directed to complete service upon SRS. As the Court has determined dismissal of the claims is appropriate, there is no pending action for which service is needed at this time. The Court will deny this request.
X. Amended Complaint
The Court has found that Hill has not set forth any viable claims. As such, Hill may choose to submit an Amended Complaint. Any such Amended Complaint will be subject to screening by the Court.
Hill is advised that all causes of action alleged in the original complaint which are not alleged in any amended complaint will be waived. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990) ("an amended pleading supersedes the original"); King v. Atiyeh, 814 F.2d 565 (9th Cir. 1987). Any amended complaint filed by Hill must be retyped or rewritten in its entirety and may not incorporate any part of the original complaint by reference. Any amended complaint submitted by Hill shall be clearly designated as an amended complaint on the face of the document.
Hill should take notice that if he fails to timely comply with every provision of this Order, this action will be dismissed pursuant to Rule 41(b), Fed.R.Civ.P. See Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992) (District Court may dismiss action for failure to comply with any order of the Court), cert. denied, 506 U.S. 915 (1992).
XI. Notice to Hill
Hill is advised that Step Up to Justice offers a free, advice-only clinic for self-represented civil litigants on Thursdays from 1:30 p.m. to 3:30 p.m. See https://www.azd.uscourts.gov/federal-court-advice-only-clinic-tucson. If Hill wishes to schedule a telephonic appointment, he should contact the courthouse librarian, Mary Ann O'Neil, at MaryAnnO'Neil@LB9.uscourts.gov.
Accordingly, IT IS THEREFORE ORDERED:
1. Hill's Application to Proceed In Forma Pauperis (Doc. 2) is GRANTED;
2. The Complaint and Hill's claims for race, age, and disability discrimination, as well as the retaliation claim, are DISMISSED WITH LEAVE TO AMEND.
3. Hill SHALL HAVE thirty (30) days from the date of filing of this Order to file an amended complaint. All causes of action alleged in the original complaint which are not alleged in any amended complaint will be waived. Any amended complaint filed by Hill must be retyped or rewritten in its entirety and may not incorporate any part of the original complaint by reference. Any amended complaint submitted by Hill shall be clearly designated as an amended complaint on the face of the document;
4. A clear, legible copy of every pleading or other document filed SHALL ACCOMPANY each original pleading or other document filed with the Clerk for use by the District Judge to whom the case is assigned. See L.R.Civ. 5.4. Failure to submit a copy along with the original pleading or document will result in the pleading or document being stricken without further notice to Smith.
5. The Clerk of Court shall mail a Complaint for Employment Discrimination to Hill.
6. The Motion to Serve (Doc. 6) is DENIED.
7. At all times during the pendency of this action, Hill shall immediately advise the Court of any change of address and its effective date. Such notice shall be captioned "NOTICE OF CHANGE OF ADDRESS". The notice shall contain only information pertaining to the change of address and its effective date. The notice shall not include any motions for any other relief. Hill shall serve a copy of the Notice of Change of Address on all served opposing parties. Failure to file a NOTICE OF CHANGE OF ADDRESS may result in the dismissal of the action for failure to prosecute pursuant to Fed.R.Civ.P. 41(b).