Boru v. Ingram Micro Services LLC ( 2019 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 TITA TED BORU, Case No.: 2:18-cv-00982-RFB-BNW 5 Plaintiff, ORDER 6 v. 7 INGRAM MICRO SERVICES, LLC, 8 Defendant. 9 10 Presently before the Court is Plaintiff Tita Ted Boru’s Application to Proceed In Forma 11 Pauperis (ECF No. 5). Boru previously filed a complaint that appears to allege employment 12 discrimination claims against his former employer, defendant Ingram Micro Services, LLC (ECF 13 No. 1-1). 14 I. In Forma Pauperis Application 15 Boru submitted the long form version of the “Application to Proceed in District Court 16 without Prepaying Fees or Costs,” as required by 28 U.S.C. § 1915(a), demonstrating an inability 17 to prepay fees and costs or give security for them. Accordingly, Boru’s request to proceed in 18 forma pauperis is granted. 19 II. Screening the Complaint 20 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 21 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims 22 and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be 23 granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 24 § 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard 25 for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 26 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient 27 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft 1 dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of 2 his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 3 2014) (quoting Iqbal, 556 U.S. at 678). 4 In considering whether the complaint is sufficient to state a claim, all allegations of 5 material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler 6 Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). 7 Although the standard under the Federal Rule of Civil Procedure 12(b)(6) does not require detailed 8 factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic 9 Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of 10 action is insufficient. Id. Unless it is clear the complaint’s deficiencies could not be cured through 11 amendment, a pro se plaintiff should be given leave to amend the complaint with notice regarding 12 the complaint’s deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 13 A. Background 14 Boru alleges he formerly was employed as a production technician at Ingram Micro 15 Services. (Compl. (ECF No. 1-1) at 6.) Between November 2015 and February 18, 2016, Boru 16 alleges he was verbally and physically harassed while employed by Ingram. (Id. at 4, 6.) The 17 harassment included daily verbal harassment and two physical encounters. (Id. at 6.) Boru further 18 alleges he reported the harassment to management, Francisco Tejada and Brandon,1 but they did 19 not act. (Id. at 4, 5-6.) 20 According to Boru, he applied for other open positions at the company, such as a position 21 in the shipping department and as a quality control agent, but he was not interviewed or offered the 22 positions despite his “perfect attendance, very good productivity and attitude.” (Id. at 5.) Instead, 23 Boru contends the company hired other candidates who were not as qualified as him, including 24 two employees “who were responsible for making [his] workplace very uncomfortable.” (Id.) 25 Boru alleges the harassment was so excessive he was constructively discharged from his position. 26 (Id. at 4, 7.) Specifically, Boru states “[t]here have been many other very violent endings in the 27 1 past history involving employee related deaths. I Ted chose to walk-out/constructively discharge 2 instead of taking the law in my own hands.” (Id. at 7.) 3 Boru states he filed a complaint with the Nevada Equal Rights Commission but that it did 4 not investigate and ruled in favor of Ingram. (Id. at 7-8.) He subsequently sued Ingram in this 5 court for discrimination, seeking one year of lost wages and damages for emotional distress of 6 $100,000. (Id. at 4.) In his in forma pauperis application, Boru explains that he diligently has 7 been searching for work since his constructive discharge but that he is unable to secure 8 employment due to his age. (See IFP Appl. (ECF No. 5).) 9 B. Federal Question Jurisdiction 10 Federal courts are courts of limited jurisdiction and possess only that power authorized by 11 the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). Pursuant to 28 U.S.C. § 12 1331, federal courts have original jurisdiction over “all civil actions arising under the Constitution, 13 laws, or treaties of the United States.” Cases “arise under” federal law either when federal law 14 creates the cause of action or where the vindication of a right under state law necessarily turns on 15 the construction of federal law. Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088-89 16 (9th Cir. 2002). Whether federal question jurisdiction exists is based on the “well-pleaded 17 complaint rule,” which provides that “federal jurisdiction exists only when a federal question is 18 presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar, Inc. v. Williams, 19 482 U.S. 386, 392 (1987). 20 Boru’s complaint asserts what the court understands to be employment discrimination and 21 retaliation claims and states that he has completed the administrative process before the Nevada 22 Equal Rights Commission. Therefore, liberally construing Boru’s complaint as the court is 23 required to do at this stage, it appears Boru invokes the court’s federal question jurisdiction. 24 However, Boru does not attach a notice of right to sue or allege when the notice was received by 25 him in comparison to when he filed his original complaint. As discussed below, the court will 26 dismiss Boru’s complaint with leave to amend. If Boru chooses to amend, he must attach his 27 notice of right to sue or include specific facts regarding when he received the notice so the court 1 C. Discrimination 2 Title VII makes it “an unlawful employment practice for an employer . . . to discriminate 3 against any individual with respect to his compensation, terms, conditions, or privileges of 4 employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. 5 § 2000e–2(a)(1). To state a claim for discrimination, a plaintiff must allege he (1) belongs to a 6 protected class; (2) was qualified for the position; (3) was subject to an adverse employment 7 action; and (4) similarly situated individuals outside her protected class were treated more 8 favorably, or that a discriminatory reason motivated the employer. Reynaga v. Roseburg Forest 9 Prod., 847 F.3d 678, 690-91 (9th Cir. 2017) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 10 792 (1973)). If the plaintiff makes out a prima facie case, the burden shifts to the employer to 11 articulate a legitimate, nondiscriminatory reason for its actions. Id. at 691. If the defendant does 12 so, then the plaintiff must show that the employer’s proffered reasons were “a mere pretext for 13 unlawful discrimination.” Id. 14 Here, Boru fails to state a claim for discrimination under Title VII because he does not 15 allege facts indicating that he belongs to a protected class. He alleges he was qualified for his 16 position and subject to an adverse employment action, but he does not offer any facts indicating his 17 constructive termination was because of his race, color, religion, sex, or national origin. He also 18 states that other employees were treated more favorably, but he does not specify whether they were 19 similarly situated employees outside his protected class. The court therefore will dismiss Boru’s 20 discrimination claim with leave to amend to include facts regarding his protected class, if any, and 21 the the circumstances surrounding his constructive termination that give rise to an inference of 22 discrimination. 23 D. Retaliation 24 To make out a prima facie case of retaliation, plaintiffs must show that they (1) “undertook 25 a protected activity under Title VII,” (2) defendants subjected them to an adverse employment 26 action, and (3) “a causal link between the two.” Vasquez v. City. of Los Angeles, 349 F.3d 634, 27 646 (9th Cir. 2003). Protected activities under Title VII include opposing allegedly discriminatory 1 acts by one’s employer. Id.; see also 42 U.S.C. 2000(e)–3(a). They also include making informal 2 complaints to one’s supervisor. See Ray v. Henderson, 217 F.3d 1234, 1240 n.3 (9th Cir. 2000). 3 Here, Boru fails to state a claim for retaliation. He alleges he suffered the adverse 4 employment action of constructive discharge, but he does not allege facts indicating that he 5 undertook a protected activity under Title VII or the causal link between the two. While he alleges 6 his supervisors retaliated against him by not hiring him for other positions, he does not allege facts 7 indicating that he undertook a protected activity under Title VII and that it was the reason for the 8 retaliation. The court therefore will dismiss Boru’s retaliation claim with leave to amend. 9 E. Instructions for Amendment 10 If Plaintiff chooses to file an amended complaint, the document must be titled “Amended 11 Complaint.” The amended complaint must contain a short and plain statement of the grounds for 12 the Court’s jurisdiction. See Fed. R. Civ. P. 8(a)(1). Additionally, the amended complaint must 13 contain a short and plain statement describing the facts underlying Plaintiff’s claims and 14 Defendant’s conduct that make up his claim of discrimination. See Fed. R. Civ. P. 8(a)(2). 15 Although the Federal Rules of Civil Procedure adopt a flexible pleading standard, Plaintiff still 16 must give the Defendant fair notice of the Plaintiff’s claims against it and Plaintiff’s entitlement to 17 relief. 18 Additionally, Plaintiff is advised that if he files an amended complaint, the original 19 complaint (ECF No.1-1) will no longer have any effect. Therefore, if Plaintiff files an amended 20 complaint, the amended complaint must include all allegations Plaintiff seeks to make without 21 reference to any prior pleading or other documents. The Court cannot refer to a prior pleading or 22 other documents to make Plaintiff’s amended complaint complete. 23 III. Conclusion 24 IT IS HEREBY ORDERED that Plaintiff’s Application for Leave to Proceed In Forma 25 Pauperis (ECF No. 5) is GRANTED. Plaintiff will not be required to pay the filing fee in this 26 action. 27 IT IS FURTHER ORDERED that Plaintiff is permitted to maintain this action to 1 || security for fees or costs. This Order granting leave to proceed in forma pauperis does not extenc 2 || to the issuance of subpoenas at government expense. 3 IT IS FURTHER ORDERED that Plaintiff's Complaint is dismissed without prejudice an 4 || with leave to amend. Plaintiff has until January 2, 2020, to file an amended complaint correcting 5 || the noted deficiencies as stated in this order. Failure to comply with this Order may result in a 6 || recommendation that this action be dismissed. 8 DATED December 2, 2019 pr La WE ERA 10 BRENDA N. WEKSLER UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28