1 WO 2 3 4 5
9 Bradford Lowell Drake, No. CV-24-00246-TUC-JGZ
10 Plaintiff, ORDER
11 v.
12 County of Pima, et al.,
13 Defendants. 14 15 On May 15, 2024, Plaintiff Drake filed a pro se Complaint alleging that Defendants 16 Pima County and Cathy Bohland discriminated against him by failing to hire him based on 17 his age, race, and gender. (Doc. 1.) The Court dismissed Plaintiff’s Complaint for failure 18 to state a claim upon which relief may be granted. (Doc. 8.) On June 26, 2024, Plaintiff 19 filed an amended Complaint. (Doc. 9.) For the following reasons, the Court will dismiss 20 Plaintiff’s Complaint and deny Plaintiff leave to amend. 21 I. Statutory Screening of IFP Complaint 22 Plaintiff is proceeding in Forma Pauperis. (Doc. 2, 7.) In reviewing an in forma 23 pauperis complaint, the Court must dismiss the case if the court determines that the 24 complaint “fails to state a claim on which relief may be granted.” 28 U.S.C. 1915(e)(2)(B); 25 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). District court screening orders apply 26 the same standard as applied to a Rule 12(b)(6) motion to dismiss. Watison v. Carter, 668 27 F.3d 1108, 1112 (9th Cir. 2012). Thus, the complaint must contain “a short and plain 28 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 1 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 2 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 3 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the 4 plaintiff pleads factual content that allows the court to draw the reasonable inference that 5 the defendant is liable for the misconduct alleged.” Id. The complaint must contain more 6 than “a statement of facts that merely creates a suspicion [of] a legally cognizable right of 7 action.” Bell Atlantic Corp., 550 U.S. at 555. “Threadbare recitals of the elements of a 8 cause of action, supported by mere conclusory statements, do not suffice.” Id. If the Court 9 determines that a pleading could be cured by the allegation of other facts, a pro se litigant 10 is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez 11 v. Smith, 203 F.3d 1122, 1127–29 (9th Cir. 2000) (en banc). 12 II. Complaint 13 Plaintiff alleges that Defendants Pima County and Cathy Bohland: (1) discriminated 14 against him based on age in violation of the Age Discrimination Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621 to 634; (2) discriminated against him based on race, national 15 origin, and gender/sex in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 16 42 U.S.C. § 2000e; (3) retaliated against him in violation of ADEA and Title VII; (4) 17 violated his Fourteenth Amendment constitutional right to Due Process, U.S. Const. 18 amend. XIV; (5) violated his Eighth Amendment constitutional right to be free from cruel 19 and unusual punishment, U.S. Const. amend. VIII; and (6) violated his Seventh 20 Amendment constitutional right to a jury trial, U.S. Const. amend. VII. (Doc. 9 at 3.) 21 Plaintiff claims that he was not hired as a Wastewater Laboratory Technician 22 because he is a Caucasian male of European descent over the age of sixty-five. (Doc. 9 at 23 5; Doc. 9-1 at 1.) In support of his claim, Plaintiff states he interviewed for a job as a 24 Wastewater Laboratory Technician at the Agua Nueva wastewater plant in Pima County 25 in June and July 2021. (Doc. 9 at 5; Doc. 9-1 at 1.) Plaintiff states he “was (and still is) 26 highly qualified for this job,” (Doc. 9-1 at 1), and that he “correctly answered ALL 27 interview questions” (Doc. 9 at 5). Plaintiff states, “he noticed the surnames of other 28 applicants who interviewed before and after him” and “the surnames related to Hispanics, 1 Asians and native American Indians.” (Doc. 9 at 5; Doc. 9-1 at 1.) Plaintiff received a 2 denial of employment with no reasons listed. (Doc. 9 at 5.) Plaintiff states he “hire[d] a 3 private investigator . . . who discovered the actual people hired were in the groups younger 4 than 65 years, Hispanic, Asian, and Native American Indian.” (Doc. 9-1 at 1.) Plaintiff 5 asserts that he belongs to “two protected groups (over 65 years AGE) and Caucasian-white 6 male. Both of which are MINORITY groups in Pima county.” (Id.) 7 Plaintiff admits that he used the word “hell” in an email sent to Defendant Bohland 8 in July 2021, which resulted in a two-year “employment ban” against him. (Doc. 9 at 6.) 9 The “employment ban” was extended to three years after Plaintiff used the words 10 “evil/power-mad” in a voicemail sent to Defendant Bohland. (Id.) Plaintiff states that he 11 sent Defendant Bohland an email “about July 20, 2023 apologizing for use of word ‘hell’” 12 and “ask[ing] politely if the defendant would kindly reinstate him to normal job application 13 status.” (Doc. 9-3 at 1.) Defendant Bohland “totally ignored the emails and phone calls 14 from plaintiff.” (Doc. 9-3 at 1.) Plaintiff also applied for a Wastewater Chemist position at the Agua Nueva wastewater plant in 2023 and received no response. (Id.) Plaintiff seeks 15 $120,000 in damages. (Doc. 9 at 6.) 16 III. Discussion 17 A. Plaintiff’s Complaint 18 i. Discrimination Claim 19 Plaintiff does not plausibly allege that Defendants discriminated against him based 20 on age, race, national origin, or gender/sex. To state a plausible claim for unlawful 21 employment discrimination where an employer fails to hire an employee, plaintiff must 22 demonstrate that: (1) he belongs to a class of protected persons; (2) he applied and was 23 qualified for a job for which the employer was seeking applicants; (3) despite his 24 qualifications, he was rejected; and (4) similarly situated individuals outside his protected 25 class were treated more favorably, or that, after his rejection, the position remained open 26 and the employer continued to seek applicants from persons of Plaintiff’s qualifications.1 27
28 1 The Court applies the same analysis to claims brought under Title VII and ADEA. See Shelley v. Geren, 666 F.3d 599, 607 (9th Cir. 2012) (“[T]he evidentiary framework of 1 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 2 Plaintiff plausibly alleges that he belongs to a class of protected persons. Plaintiff 3 states that he is a Caucasian male of European descent over sixty-five years of age. (Doc. 4 9 at 5.) Plaintiff plausibly alleges that he was qualified for the position of Wastewater 5 Laboratory Technician. (Doc. 9 at 5; Docs. 9-5–9-7.) The application for the position stated 6 the minimum requirement was a “Bachelor’s degree from an accredited college or 7 university in chemistry, biology, microbiology or a closely related field as defined by the 8 appointing authority.” (Doc. 9-4 at 2.) As demonstrated by his resume, Plaintiff received 9 his Master of Science from University of Michigan-Dearborn in chemistry and previously 10 held positions as an analytical chemist and lab technician. (Doc.
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1 WO 2 3 4 5
9 Bradford Lowell Drake, No. CV-24-00246-TUC-JGZ
10 Plaintiff, ORDER
11 v.
12 County of Pima, et al.,
13 Defendants. 14 15 On May 15, 2024, Plaintiff Drake filed a pro se Complaint alleging that Defendants 16 Pima County and Cathy Bohland discriminated against him by failing to hire him based on 17 his age, race, and gender. (Doc. 1.) The Court dismissed Plaintiff’s Complaint for failure 18 to state a claim upon which relief may be granted. (Doc. 8.) On June 26, 2024, Plaintiff 19 filed an amended Complaint. (Doc. 9.) For the following reasons, the Court will dismiss 20 Plaintiff’s Complaint and deny Plaintiff leave to amend. 21 I. Statutory Screening of IFP Complaint 22 Plaintiff is proceeding in Forma Pauperis. (Doc. 2, 7.) In reviewing an in forma 23 pauperis complaint, the Court must dismiss the case if the court determines that the 24 complaint “fails to state a claim on which relief may be granted.” 28 U.S.C. 1915(e)(2)(B); 25 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). District court screening orders apply 26 the same standard as applied to a Rule 12(b)(6) motion to dismiss. Watison v. Carter, 668 27 F.3d 1108, 1112 (9th Cir. 2012). Thus, the complaint must contain “a short and plain 28 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 1 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 2 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 3 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the 4 plaintiff pleads factual content that allows the court to draw the reasonable inference that 5 the defendant is liable for the misconduct alleged.” Id. The complaint must contain more 6 than “a statement of facts that merely creates a suspicion [of] a legally cognizable right of 7 action.” Bell Atlantic Corp., 550 U.S. at 555. “Threadbare recitals of the elements of a 8 cause of action, supported by mere conclusory statements, do not suffice.” Id. If the Court 9 determines that a pleading could be cured by the allegation of other facts, a pro se litigant 10 is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez 11 v. Smith, 203 F.3d 1122, 1127–29 (9th Cir. 2000) (en banc). 12 II. Complaint 13 Plaintiff alleges that Defendants Pima County and Cathy Bohland: (1) discriminated 14 against him based on age in violation of the Age Discrimination Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621 to 634; (2) discriminated against him based on race, national 15 origin, and gender/sex in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 16 42 U.S.C. § 2000e; (3) retaliated against him in violation of ADEA and Title VII; (4) 17 violated his Fourteenth Amendment constitutional right to Due Process, U.S. Const. 18 amend. XIV; (5) violated his Eighth Amendment constitutional right to be free from cruel 19 and unusual punishment, U.S. Const. amend. VIII; and (6) violated his Seventh 20 Amendment constitutional right to a jury trial, U.S. Const. amend. VII. (Doc. 9 at 3.) 21 Plaintiff claims that he was not hired as a Wastewater Laboratory Technician 22 because he is a Caucasian male of European descent over the age of sixty-five. (Doc. 9 at 23 5; Doc. 9-1 at 1.) In support of his claim, Plaintiff states he interviewed for a job as a 24 Wastewater Laboratory Technician at the Agua Nueva wastewater plant in Pima County 25 in June and July 2021. (Doc. 9 at 5; Doc. 9-1 at 1.) Plaintiff states he “was (and still is) 26 highly qualified for this job,” (Doc. 9-1 at 1), and that he “correctly answered ALL 27 interview questions” (Doc. 9 at 5). Plaintiff states, “he noticed the surnames of other 28 applicants who interviewed before and after him” and “the surnames related to Hispanics, 1 Asians and native American Indians.” (Doc. 9 at 5; Doc. 9-1 at 1.) Plaintiff received a 2 denial of employment with no reasons listed. (Doc. 9 at 5.) Plaintiff states he “hire[d] a 3 private investigator . . . who discovered the actual people hired were in the groups younger 4 than 65 years, Hispanic, Asian, and Native American Indian.” (Doc. 9-1 at 1.) Plaintiff 5 asserts that he belongs to “two protected groups (over 65 years AGE) and Caucasian-white 6 male. Both of which are MINORITY groups in Pima county.” (Id.) 7 Plaintiff admits that he used the word “hell” in an email sent to Defendant Bohland 8 in July 2021, which resulted in a two-year “employment ban” against him. (Doc. 9 at 6.) 9 The “employment ban” was extended to three years after Plaintiff used the words 10 “evil/power-mad” in a voicemail sent to Defendant Bohland. (Id.) Plaintiff states that he 11 sent Defendant Bohland an email “about July 20, 2023 apologizing for use of word ‘hell’” 12 and “ask[ing] politely if the defendant would kindly reinstate him to normal job application 13 status.” (Doc. 9-3 at 1.) Defendant Bohland “totally ignored the emails and phone calls 14 from plaintiff.” (Doc. 9-3 at 1.) Plaintiff also applied for a Wastewater Chemist position at the Agua Nueva wastewater plant in 2023 and received no response. (Id.) Plaintiff seeks 15 $120,000 in damages. (Doc. 9 at 6.) 16 III. Discussion 17 A. Plaintiff’s Complaint 18 i. Discrimination Claim 19 Plaintiff does not plausibly allege that Defendants discriminated against him based 20 on age, race, national origin, or gender/sex. To state a plausible claim for unlawful 21 employment discrimination where an employer fails to hire an employee, plaintiff must 22 demonstrate that: (1) he belongs to a class of protected persons; (2) he applied and was 23 qualified for a job for which the employer was seeking applicants; (3) despite his 24 qualifications, he was rejected; and (4) similarly situated individuals outside his protected 25 class were treated more favorably, or that, after his rejection, the position remained open 26 and the employer continued to seek applicants from persons of Plaintiff’s qualifications.1 27
28 1 The Court applies the same analysis to claims brought under Title VII and ADEA. See Shelley v. Geren, 666 F.3d 599, 607 (9th Cir. 2012) (“[T]he evidentiary framework of 1 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 2 Plaintiff plausibly alleges that he belongs to a class of protected persons. Plaintiff 3 states that he is a Caucasian male of European descent over sixty-five years of age. (Doc. 4 9 at 5.) Plaintiff plausibly alleges that he was qualified for the position of Wastewater 5 Laboratory Technician. (Doc. 9 at 5; Docs. 9-5–9-7.) The application for the position stated 6 the minimum requirement was a “Bachelor’s degree from an accredited college or 7 university in chemistry, biology, microbiology or a closely related field as defined by the 8 appointing authority.” (Doc. 9-4 at 2.) As demonstrated by his resume, Plaintiff received 9 his Master of Science from University of Michigan-Dearborn in chemistry and previously 10 held positions as an analytical chemist and lab technician. (Doc. 9-5 at 1-2.) Plaintiff 11 plausibly alleges that despite his qualifications, he was rejected for the Wastewater 12 Laboratory Technician position. (Doc. 9 at 5; Doc. 9-1 at 1; Doc. 9-8.) However, Plaintiff 13 fails to plausibly allege that similarly situated individuals outside his protected class were 14 treated more favorably. McDonnell Douglas Corp., 411 U.S. at 802 (emphasis added). Plaintiff states that when he interviewed at the Agua Nueva water plant, he “happened to 15 notice 3 surnames on the guest sign-in sheet . . . and those surnames were Hispanic & 16 Asian.” (Doc. 9-1 at 1.) Notwithstanding the fact that a surname is not proof of an 17 individual’s racial identity or national origin, Plaintiff fails to plausibly alleged that the 18 individuals listed on the guest sign-in sheet at the Agua Nueva wastewater plant were (1) 19 interviewing for the same position as Plaintiff, if at all, (2) “similarly situated” to the 20 Plaintiff with respect to their qualifications, or (3) “treated more favorably” than Plaintiff. 21 Plaintiff says nothing of the other candidates’ qualifications. Further, it is unclear whether 22 the position was filled, who filled the position, or whether the position remained open after 23 Plaintiff’s application was rejected. The private investigator’s statement that Pima County 24 hired candidates “younger than 65 years, Hispanic, Asian, and Native American Indian” is 25 insufficient to plausibly establish that a lesser qualified candidate outside of Plaintiff’s 26 protected class was hired for the role for which Plaintiff was rejected. Therefore, Plaintiff 27 28 McDonnell Douglas utilized in Title VII cases is appropriate in the ADEA context.”). 1 has not plausibly alleged that Defendants discriminated against him based on his age, race, 2 national origin, or gender/sex. 3 ii. Retaliation Claim 4 Plaintiff does not plausibly allege that Defendants retaliated against him in violation 5 of ADEA or Title VII. To establish prima facie case of retaliation under either Title VII or 6 ADEA, a plaintiff must show (1) engagement in a protected activity, (2) an adverse 7 employment action, and (3) a causal link between the two. Ray v. Henderson, 217 F.3d 8 1234, 1240 (9th Cir. 2000) (Title VII); Poland v. Chertoff, 494 F.3d 1174, 1179–80 (9th 9 Cir. 2007) (ADEA). As relevant here, a plaintiff engages in “protected activity” when he 10 (1) opposes employment practices prohibited under Title VII; (2) makes a charge of 11 discrimination; or (3) participates in an investigation, proceeding or hearing arising under 12 Title VII. Jacobs v. Hudson Valley Fam. Physicians, PLLC, No. 1:22-CV-1184, 2024 WL 13 1200002, at *7 (N.D.N.Y. Mar. 20, 2024) (cleaned up). 14 Plaintiff’s allegations do not describe protected activity on his part. Plaintiff admits to sending an email and voicemail to Defendant Bohland. (Doc. 9 at 6.) He alleges that, in 15 response, Defendant Bohland imposed a 3-year employment ban “and ignored 16 communication from Plaintiff July 15-Sept 2023 when he was applying for wastewater 17 chemist job.” (Id.) Plaintiff’s inappropriate communications to Defendant Bohland do not 18 constitute opposition to employment practices prohibited under Title VII or the ADEA. 19 Consequently, imposition of a hiring ban against Plaintiff in response to his messages is 20 insufficient to state a claim for retaliation. 21 iii. Eighth Amendment Claim 22 Plaintiff does not plausibly allege that the Defendants violated his Eighth 23 Amendment right to be free from cruel and unusual punishment. The Eighth Amendment 24 prohibits state and federal governments from imposing unduly harsh penalties. See U.S. 25 Const. amend. VIII. Plaintiff asserts that the “three-year employment ban” imposed against 26 him by Defendants violates his Eighth Amendment constitutional right. (Doc. 9 at 3.) 27 Accepting Plaintiff’s allegations as true, the imposition of a hiring freeze for a short period, 28 under the circumstances alleged, is not an excessive fine or penalty protected by the Eighth 1 Amendment. 2 iv. Fourteenth Amendment Claim 3 Plaintiff does not state whether he is alleging a substantive due process violation or 4 a procedural due process violation. To state a substantive due process claim, a plaintiff 5 must sufficiently allege: (1) a “valid property interest” or “fundamental right” and (2) 6 defendant infringed on that right by conduct that “shocks the conscience” or suggests a 7 “gross abuse of governmental authority.” Leder v. Am. Traffic Sols., Inc., 81 F. Supp. 3d 8 211, 223 (E.D.N.Y.), aff'd, 630 F. App'x 61 (2d Cir. 2015). A procedural due process claim 9 has two elements: (1) deprivation of a constitutionally protected liberty or property interest 10 and (2) denial of adequate procedural protections. See McQuillion v. Duncan, 306 F.3d 11 895, 900 (9th Cir. 2002); Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000). For both 12 substantive and procedural due process claims brought under the Fourteenth Amendment, 13 a plaintiff must initially demonstrate the existence of a protectable property interest. 14 Paciulan v. George, 229 F.3d 1226, 1230 (9th Cir. 2000). Here, Plaintiff’s application for future employment is not a protected property interest. Therefore, Plaintiff fails to state a 15 claim upon which relief may be granted. 16 v. Seventh Amendment Claim 17 The Seventh Amendment protects the right to a jury trial in civil cases involving 18 more than $20. See U.S. Const. amend. VIII. Plaintiff states that his action “is brought for 19 discrimination in employment pursuant to . . . ‘possibly Amendment 7 (if Court finds there 20 should be a jury trial).’” (Doc. 9 at 3.) Plaintiff does not plausibly allege that there has been 21 a violation of his right to a jury trial. To the extent that Plaintiff wishes to request a jury 22 trial in this matter, he must select the option “Yes” next to the statement “Jury Trial: (check 23 one)” on the first page of his Complaint. (See Doc. 9 at 1.) If a request is made, and the 24 case proceeds to trial, the matter will be heard by a jury. 25 B. Leave to Amend 26 Dismissal with prejudice is appropriate where a litigant repeatedly fails to cure 27 deficiencies and leave to amend would be futile, as well as prejudicial to the opposing 28 parties. See e.g., U.S. ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001); Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008). Plaintiff was given an opportunity to amend his complaint so as to properly state a claim 3|| but failed to do so. In addition, in light of the allegations in Plaintiff's Amended Complaint, 4|| it appears that granting further leave to amend would be futile. Accordingly, 5 IT IS ORDERED: 6 1. Plaintiff's Amended Complaint (Doc. 9) is dismissed with prejudice. 7 2. The Clerk of the Court is directed to enter a judgment of dismissal and close 8 this case. 9 Dated this 15th day of August, 2024. 10 11 □ 12 □□ 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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