(PS) Collins v. XL Construction

• Court: District Court, E.D. California
• Decided: January 31, 2020
• Docket: 2:19-cv-01530
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DERRICK L COLLINS, No. 2:19–cv–1530 TLN–KJN PS 12 Plaintiff, RECOMMENDATIONS TO DISMISS AND TO GRANT LEAVE TO AMEND 13 v. ONLY TITLE VII CLAIMS 14 XL CONSTRUCTION, et al., (ECF No. 11.) 15 Defendants. 16 17 This action concerns a dispute between Plaintiff Derrick L. Collins, who is proceeding 18 without counsel in this action, and Defendants XL Construction, Southwest Hazard Control 19 (“SHC”), SHCCA, Inc., and Chrisann Karches.1 (ECF No. 1.) Plaintiff asserts claims under Title 20 VII for race discrimination, as well as an “Equal Pay Act” claim, a “Whistleblower Protection 21 Act” claim, and a claim for “Retaliation.” (See Id. at p. 4.) Defendants SHC, SHCCA, and 22 Karches now move to dismiss for failure to state a claim, which Plaintiff opposes.2 (ECF Nos. 23 11, 16, 17.) The Court heard oral arguments at a January 30, 2020 hearing. (See ECF No. 18.) 24 For the reasons that follow, the Court recommends Defendants’ motion to dismiss be 25 GRANTED, and Plaintiff be GRANTED leave to amend only his Title VII claims. 26 1 This action proceeds before the undersigned per Local Rule 302(c)(21). 27 2 As of the time of this order, Defendant XL Construction has yet to be served. Thus, 28 “Defendants” refers to SHC, SHCCA, and Karches. 1 Background3 2 In March of 2019, Plaintiff was hired by SHC4 for lead and asbestos abatement. He was 3 assigned to a project in Roseville, for which SHC was subcontracted; XL Construction was the 4 main contractor. On March 29, while Plaintiff was working on a ladder, an XL supervisor named 5 Antonio “decided to get on [a] tile remover machine and start driving it all around [the] work 6 area.” When Antonio “came dangerously close (inches) to the ladder,” Plaintiff told him “do not 7 get that close to me.” Antonio disregarded Plaintiff, and so Plaintiff informed his foreman he was 8 leaving work. Plaintiff alleges it was “common” for Antonio to harass him “for no reason.” 9 Plaintiff was later told by XL to not return until after an investigation was completed. 10 After receiving a right to sue letter from the California Department of Fair Employment 11 an Housing (“DFEH”), Plaintiff filed suit in this Court. Plaintiff asserted claims of race 12 discrimination and retaliation under Title VII, as well as claims for violation of the “Equal Pay 13 Act” and the “Whistleblower Protection Act.” Plaintiff alleges PTSD, emotional distress, pain 14 and suffering, depression, and anxiety. He seeks lost wages, $25,000 in damages and $30,000 in 15 punitive damages. Defendants SHC, SHCCA, and Karches moved to dismiss, and Plaintiff 16 opposed. (ECF Nos. 11, 16, 17.) 17 Legal Standard 18 Federal Rule of Civil Procedure 8(a) requires that a pleading be “(1) a short and plain 19 statement of the grounds for the court’s jurisdiction . . . ; (2) a short and plain statement of the 20 claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which 21 may include relief in the alternative or different types of relief.” 22 A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) 23 challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase 24 Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). When a court considers whether a

25 3 These facts derive from the Complaint and attachments, and are construed in the light most favorable to Plaintiff, the non-moving party. Faulkner v. ADT Sec. Servs., 706 F.3d 1017, 1019 26 (9th Cir. 2013); see also Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (“In ruling on 27 a 12(b)(6) motion, a court may generally consider . . . exhibits attached to the complaint[.]”).

28 4 It is possible SHCCA was Plaintiff’s employer. For simplicity, the Court refers to SHC only. 1 complaint states a claim upon which relief may be granted, all well-pled factual allegations must 2 be accepted as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and the complaint must be 3 construed in the light most favorable to the non–moving party, Corrie v. Caterpillar, Inc., 503 4 F.3d 974, 977 (9th Cir. 2007). The court is not, however, required to accept as true “conclusory 5 [factual] allegations that are contradicted by documents referred to in the complaint,” or “legal 6 conclusions merely because they are cast in the form of factual allegations.” Paulsen v. CNF Inc., 7 559 F.3d 1061, 1071 (9th Cir. 2009). Thus, to avoid dismissal for failure to state a claim, a 8 complaint must contain more than “naked assertions,” “labels and conclusions,” or “a formulaic 9 recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555- 10 57 (2007). Simply, the complaint “must contain sufficient factual matter, accepted as true, to 11 ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 12 (citing Twombly, 550 U.S. at 570). Plausibility means pleading “factual content that allows the 13 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 14 Pro se pleadings are to be liberally construed. Hebbe v. Pliler, 627 F.3d 338, 342 & fn. 7 15 (9th Cir. 2010) (liberal construction appropriate even post–Iqbal). Prior to dismissal, the court is 16 to tell the plaintiff of deficiencies in the complaint and give the plaintiff an opportunity to cure 17 them––if it appears at all possible the defects can be corrected. See Lopez v. Smith, 203 F.3d 18 1122, 1130-31 (9th Cir. 2000) (en banc). However, if amendment would be futile, no leave to 19 amend need be given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). 20 Parties’ Arguments 21 Defendants argue Plaintiff’s Complaint fails to state a Title VII claim, as it lacks facts to 22 indicate that Plaintiff was discriminated against on the basis of his race, or that he exhausted his 23 administrative remedies on the retaliation claim. Further, Defendants argue the Equal Pay Act is 24 inapplicable, as it protects against sex discrimination, and the Whistleblower Act claim cannot be 25 responded to because Defendants are unsure what source of law Plaintiff relies on. (ECF No. 11.) 26 Plaintiff’s half–page opposition deems the motion to dismiss “a waste of the court’s time 27 and resources,” and that the record is not sufficiently developed. He otherwise requests an 28 opportunity to amend. (ECF No. 16.) 1 Analysis 2 As Plaintiff does not specifically oppose Defendants’ motion to dismiss, and instead 3 requests an opportunity to amend, the Court recommends dismissal. However, not all of 4 Plaintiff’s claims may be amended. For clarity, the Court recites the standards for each claim and 5 informs Plaintiff which claims can be amended. 6 I. Plaintiff’s Title VII race discrimination claim may be amended. 7 Title VII of the 1964 Civil Rights act makes it an unlawful employment practice for an 8 employer to “discharge any individual, or otherwise to discriminate against any individual . . . 9 because of such individual’s race . . . .” 42 U.S.C. 2000e–2(a)(1). Thus, any harassment Plaintiff 10 is subjected to must have occurred “because of his race.” Vasquez v. County of Los Angeles, 349 11 F.3d 634, 642 (9th Cir. 2003); Kortan v. State of Cal., 5 F. Supp. 2d 843, 850 (C.D. Cal. 1998) 12 (“[H]arassment must come because of the plaintiff's protected characteristic.”). 13 Here, Plaintiff checked the box “Race” on his form Complaint, as well as in the DFEH 14 charge, but does not explicitly identify what is his race. (ECF No. 1 at pp. 5, 19.) The Court 15 notes from the demographic sheet appended to the Complaint that Plaintiff is African American–– 16 a protected class. (Id. at p. 26.) However, the Court finds no allegation that Defendants acted as 17 they did because of Plaintiff’s race. (See Id.) Instead, the bulk of Plaintiff’s narrative concerns 18 an apparent safety dispute between Plaintiff and an employee of XL Construction. (See Id.) 19 This, of course, does not fall under the purview of Title VII. See, e.g., Mayes v. Kaiser Found. 20 Hosps., 917 F. Supp. 2d 1074, 1079 (E.D. Cal. 2013) (“Although plaintiff describes some of the 21 events leading to his termination, he provides no meaningful detail suggesting the termination 22 was because of his race[.]”). Thus, Plaintiff’s discrimination claim must be dismissed. 23 Further, at the January 30 hearing, the Court asked Plaintiff about the facts underlying his 24 Title VII claims. Plaintiff stated he “wanted to reserve those issues for discovery,” and did not 25 otherwise elaborate on the facts. Plaintiff’s responses give the Court pause as to whether to allow 26 amendment, but given his pro se status, amendment will be permitted. Moving forward, Plaintiff 27 must include in his complaint plausible facts that allows the court to reasonably infer that 28 Defendants are liable for any alleged race discrimination. Iqbal, 556 U.S. at 678. 1 The Court notes that Plaintiff’s Complaint includes an allegation of harassment. (See 2 ECF No. 1 at p. 9.) If Plaintiff chooses to amend this claim to focus on this allegation, he should 3 mind the pleading standards for Title VII discrimination claims. See O'Bard-Honorato v. 4 O'Rourke, 2019 WL 4451234, at *4 (C.D. Cal. Apr. 24, 2019) (“To allege a prima facie claim of 5 discrimination based on race under Title VII, a plaintiff must allege sufficient facts showing that 6 [he] (1) belongs to a protected class, (2) was performing [his] job satisfactorily, (3) sustained an 7 adverse employment action, and (4) similarly situated individuals outside the protected class were 8 treated more favorably.”) (quoting McDonnell Douglas Corp v. Green, 411 U.S. 792, 802); 9 Rohm v. Homer, 367 F. Supp. 2d 1278, 1285–86 (N.D. Cal. 2005) (“To establish a prima facie 10 hostile work environment claim under Title VII . . . a plaintiff must show that ‘(1) [he] was 11 ‘subjected to verbal or physical conduct’ because of [his] race, (2) ‘the conduct was unwelcome,’ 12 and (3) ‘the conduct was sufficiently severe or pervasive to alter the conditions of [his] 13 employment and create an abusive work environment.’”) (quoting Manatt v. Bank of America, 14 NA, 339 F.3d 792, 798 (9th Cir. 2003). Further, Title VII only makes an employer liable, not the 15 individual employees––including upper–level management. See Miller v. Maxwell's Int'l Inc., 16 991 F.2d 583, 587 (9th Cir. 1993) (“Title VII limits liability to employers [and not] individual 17 employees”). Plaintiff is advised of his responsibilities to under Rule 11 to only make assertions 18 for which there is a factual basis.5 19 /// 20 /// 21 ///

22 5 Federal Rule of Civil Procedure 11 states: 23 “By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented 24 party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: 25 (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; 26 … 27 (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable 28 opportunity for further investigation or discovery[.]” 1 II. Plaintiff may amend his retaliation claim––but only after considering the Court’s 2 cautionary note. 3 Plaintiff lists a “Retaliation” claim on his form Complaint, which Defendants challenge on 4 failure to exhaust grounds. See 42 U.S.C. § 2000(e)-16(c); Sommatino v. U.S., 255 F.3d 704, 5 707 (9th Cir. 2001). However, the Ninth Circuit instructs that “[a]dministrative charges are to be 6 construed with utmost liberality since they are made by those unschooled in the technicalities of 7 formal pleading.” B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1100 (9th Cir. 2002). Given that 8 Plaintiff raised a race discrimination issue with the DFEH and was granted a right to sue letter, it 9 is reasonable to assume the DFEH’s investigation would have included a related race–based 10 retaliation charge. See Vasquez v. County of Los Angeles, 349 F.3d 634, 645 (9th Cir. 2003) 11 (finding the plaintiff had exhausted his administrative remedies with regard to retaliation by his 12 supervisor because, “[w]hile the EEOC charge does not contain the relevant legal theory of 13 retaliation, it does contain the relevant factual allegations.”). The right–to–sue form provided by 14 DFEH allows a charging party to check a box––which Plaintiff did––indicating he was “[d]enied 15 a work environment free of discrimination and/or retaliation.” Further, the facts indicate that 16 Plaintiff was effectively suspended because of the incident, indicating some causal connection. 17 Simply, the retaliation claim probably rises or falls with the discrimination claim, and the 18 undersigned will not take up Defendants’ argument to dismiss the retaliation claim on exhaustion 19 grounds. 20 However, as with the discrimination claim, the Complaint falls short of federal pleading 21 standards for a retaliation claim. “To establish a prima facie case of retaliation, [plaintiff] must 22 show that he undertook a protected activity under Title VII, his employer subjected him to an 23 adverse employment action, and there is a causal link between those two events.” Reynaga v. 24 Roseburg Forest Prod., 847 F.3d 678, 693 (9th Cir. 2017). Key to any prima facie case is an 25 allegation that the plaintiff’s protected activity demonstrates he objected to an act prohibited by 26 Title VII, such as race or sex discrimination. See 42 U.S.C. 2000e–3(a). (“It shall be an unlawful 27 employment practice for an employer to discriminate against [an] employee . . . because he has 28 opposed any practice made an unlawful employment practice by this subchapter . . . .”). 1 Here, Plaintiff fails to provide facts showing that he undertook a protected activity. The 2 Complaint states that Plaintiff told his supervisor he was leaving work due to a co–worker’s 3 allegedly-hazardous acts, and was subsequently suspended. The text messages appended to 4 Plaintiff’s Complaint corroborates this alleged fact––that Plaintiff’s accusations made to his 5 supervisors concerning his co–worker’s unsafe acts. (See ECF No. 1 at pp. 28–36.) Thus, the 6 core of Plaintiff’s alleged “protected activity” concerns a workplace-safety issue and not, as the 7 check-box on Plaintiff’s form Complaint indicates, race discrimination. Workplace safety is not a 8 protected activity under Title VII, requiring the claim to be dismissed. See, e.g., Martinez v. 9 Marmaxx Grp., 2010 WL 11579688, at *2 (D. Nev. June 7, 2010) (“[Plaintiff] claims [defendant] 10 fired him because he complained that Rocha had been harassing him and because he reported 11 Rocha for violating [OSHA]. [Plaintiff] does not allege, as is required under Title VII, that 12 [defendant] terminated him for complaining that [defendant] had discriminated against him or an 13 fellow employee based upon race, color, religion, sex, or national origin.”); Padilla v. Bechtel 14 Const. Co., 2007 WL 1219737, at *6 (D. Ariz. Apr. 25, 2007) (“[N]o retaliation claim exists 15 under Title VII for an employer’s refusal to rehire an employee for reporting safety violations to 16 the EEOC. Elimination of safety violations in employment does not ‘fairly fall within the 17 protection of Title VII to sustain a claim of unlawful retaliation.’”). 18 Given the Court’s liberal treatment of pro se pleadings, and the “utmost liberality” 19 command from the Ninth Circuit regarding exhaustion, Plaintiff should have an opportunity to 20 amend the retaliation claim. However, Plaintiff is strongly cautioned that representations made in 21 pleadings must have a factual basis. See Fed. R. Civ. P. 11 (footnote 5, above); see also Local 22 Rule 110 (noting that a party’s failure to comply with the rules or order of the court “may be 23 grounds for imposition by the Court of any and all sanctions,” including monetary sanctions up 24 through terminating sanctions) Thus, if Plaintiff has no other evidence to show he complained to 25 his supervisors about any race–based discrimination prior to being suspended in March 2019, he 26 should not include a retaliation claim in his First Amended Complaint. See, e.g., Learned v. City 27 of Bellevue, 860 F.2d 928, 932 (9th Cir. 1988) (affirming dismissal of retaliation claim because 28 the plaintiff “did not allege that he ever opposed any discrimination based upon race, color, 1 religion, sex, or national origin.”)

2 III. Plaintiff’s “Equal Pay Act” and “Whistleblower Protection Act” claims should be dismissed as frivolous. 3 Plaintiff alleges a violation of the “Equal Pay Act.” (See ECF No. 1 at p. 4.) It appears 4 Plaintiff was intending to assert a claim concerning the differential in pay between what SHC 5 initially told him ($35/hour) and what he agreed to ($30/hour). (Id. at p. 8.) However, as 6 Defendant notes, the Equal Pay Act concerns sex discrimination, which is not at issue here. See 7 29 U.S.C. § 206 (“No employer having employees subject to any provisions of this section shall 8 discriminate, within any establishment in which such employees are employed, between 9 employees on the basis of sex by paying wages to employees in such establishment at a rate less 10 than the rate at which he pays wages to employees of the opposite sex . . . .”). Thus, Plaintiff’s 11 “Equal Pay Act” claim should be dismissed as a legally frivolous claim. See Cook v. Peter 12 Kiewit Sons Co., 775 F.2d 1030, 1035 (9th Cir. 1985) (“Under the substantiality doctrine, the 13 district court lacks subject matter jurisdiction when the question presented is too insubstantial to 14 consider.”) (citing Hagans v. Lavine, 415 U.S. 528, 536-39 (1974)); see also Apple v. Glenn, 183 15 F.3d 477, 479 (6th Cir. 1999) (“a district court may, at any time, sua sponte dismiss a complaint 16 for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil 17 Procedure when the allegations of a complaint are totally implausible, attenuated, unsubstantial, 18 frivolous, devoid of merit, or no longer open to discussion.”). 19 The same conclusion holds true for Plaintiff’s listing of a “Whistleblower Protection Act” 20 claim. Plaintiff does not cite a source of law, nor does he provide any facts concerning any 21 whistleblowing––leaving Defendants and the Court at a loss as to the basis for Plaintiff’s claim. 22 Thus, this claim should also be dismissed as frivolous. See Cook, 775 F.2d at 1035. 23 Given the frivolity of these claims, the Court recommends that they be dismissed with 24 prejudice––that leave to amend not be granted. 25 //// 26 //// 27 //// 28 1 Conclusion – General principles regarding amendment of the complaint 2 First, nothing in this order requires Plaintiff to file a first amended complaint. If Plaintiff 3 determines that he is unable to amend his complaint to state a viable claim in accordance with his 4 obligations under Federal Rule of Civil Procedure 11, he may alternatively file a notice of 5 voluntary dismissal of his claims without prejudice pursuant to Federal Rule of Civil Procedure 6 41(a)(1)(A)(i). 7 However, if Plaintiff elects to proceed with this action in federal court, he is encouraged to 8 familiarize himself with this court’s Local Rules6 and the Federal Rules of Civil Procedure. 9 Although the Court is sympathetic to the difficulties faced by pro se litigants in litigating their 10 cases in federal court, and liberally construes their pleadings, pro se litigants are expected to 11 comply with all procedural rules and court orders. Further, any amended complaint shall:

12 i. be captioned “First Amended Complaint”; 13 ii. set forth his various claims in separate sections and clearly identify which Defendants are allegedly at fault for each claim (e.g., Claim I against Defendant X, Claim II 14 against Defendant Y); iii. under each section, list the factual allegations supporting that particular claim; 15 iv. include a general background facts section to orient the reader only as necessary; v. include his statements for jurisdiction, venue, and relief sought as is necessary; 16 vi. address any other pleading deficiencies outlined above; and 17 vii. be filed within 21 days after the district judge has issued an order on these findings and recommendations. 18 19 Plaintiff is informed that the Court cannot refer to a prior complaint or other filing in order to 20 make Plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 21 complaint be complete in itself without reference to any prior pleading. As a general rule, an 22 amended complaint supersedes the original complaint, and once the amended complaint is filed, 23 the original complaint no longer serves any function in the case. 24 Finally, these findings and recommendations apply to Defendant XL, who (it appears) has 25 not yet been served with process. “A District Court may properly on its own motion dismiss an 26 action as to defendants who have not moved to dismiss where such defendants are in a position 27 similar to that of moving defendants or where claims against such defendants are integrally

28 6 Available at: http://www.caed.uscourts.gov/caednew/index.cfm/rules/local-rules/ 1 related.” Silverton v. Dep’t of Treasury, 644 F.2d 1341, 1345 (9th Cir. 1981). “Such a dismissal 2 may be made without notice where the [plaintiffs] cannot possibly win relief.” Omar v. Sea-Land 3 Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987). The court’s authority in this regard includes sua 4 sponte dismissal as to defendants who have not been served and defendants who have not yet 5 answered or appeared. Columbia Steel Fabricators, Inc. v. Ahlstrom Recovery, 44 F.3d 800, 802 6 (9th Cir. 1995) (“We have upheld dismissal with prejudice in favor of a party which had not yet 7 appeared, on the basis of facts presented by other defendants which had appeared”); see also Bach 8 v. Mason, 190 F.R.D. 567, 571 (D. Idaho 1999); Ricotta v. California, 4 F. Supp. 2d 961, 978-79 9 (S.D. Cal. 1998). Here, all Defendants are similarly situated, as the Court’s logic is applicable to 10 Defendant XL. Further, it appears all of Plaintiff’s claims are integrally related, as the entire 11 complaint pertains to the same dispute. (See, generally, ECF No. 1.) Therefore, dismissal is 12 appropriate as to all Defendants. 13 RECOMMENDATIONS 14 Accordingly, IT IS HEREBY RECOMMENDED that: 15 1. Defendants’ motion to dismiss (ECF No. 11) be GRANTED; 16 2. Plaintiff be granted leave to amend his race discrimination and retaliation claims, as 17 outlined above; 18 3. Plaintiff’s “Equal Pay Act” and “Whistleblower Protection Act” claims be 19 DISMISSED WITHOUT LEAVE TO AMEND; 20 4. Within 21 days of the district judge’s order (which will come after the expiration of 21 the objection period and after the final ruling by the district judge on these F&R’s), 22 Plaintiff be ordered file either (a) a first amended complaint or (b) a request for 23 voluntary dismissal of the action without prejudice; and 24 5. Plaintiff be informed that failure to timely comply with these recommendations and 25 the district court’s order may result in dismissal of the action with prejudice pursuant 26 to Federal Rule of Civil Procedure 41(b). 27 These findings and recommendations are submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 1 | days after being served with these findings and recommendations, any party may file written 2 | objections with the court and serve a copy on all parties. Such a document should be captioned 3 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 4 | shall be served on all parties and filed with the court within fourteen (14) days after service of the 5 || objections. The parties are advised that failure to file objections within the specified time may 6 | waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 7 | Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 8 | Dated: January 31, 2020 ° Fens Arn 10 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 11 coll.1530 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11