Wright-Hicks v. Tropical Smoothie Cafe LLC

Opinion

1 2 3 4 ; UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 6 ok Kk 7 || Kiara Wright-Hicks, Case No. 2:23-cv-00621-APG-BNW 8 Plaintiff, ORDER 9 v. 10 || Tropical Smoothie Cafe LLC, 1] Defendant. 12 13 Before the Court is Plaintiff's Amended Complaint. ECF No. 8. This Court previously 14 || dismissed Plaintiff's complaint without prejudice based on Plaintiffs failure to state a claim. ECF 15 || No. 4. The Court has reviewed the Amended Complaint and finds that it is still deficient because 16 || Plaintiff not alleged facts as to each element of her claims. The Amended Complaint is 17 || dismissed without prejudice. Plaintiff will have 30 days to file a second amended complaint. 18 I. Screening the Complaint 19 A. Legal Standard 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). When screening the complaint, a court must identify cognizable 22 || claims and dismiss claims that are frivolous, malicious, fail to state a claim upon which relief may 23 || be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 24 || 1915(e)(2). The grounds for dismissal due to failure to state a claim under 28 U.S.C. § 1915(e)(2) 25 || mirror the standards set forth in 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 allege sufficient 27 || factual details that, accepted as true, present a plausible claim for relief. Ashcroft v. Iqbal, 556 28 || U.S. 662, 678 (2009). When assessing whether the complaint is sufficient to state a claim, all

1 || allegations of material fact are taken as true and construed in the light most favorable to the 2 || plaintiff. Wyler Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) 3 || (citation omitted). Although the standard under Rule 12(b)(6) does not require detailed factual 4 || allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. 5 || Twombly, 550 U.S. 544, 555 (2007). Simply reciting the elements of a cause of action is 6 || insufficient to sustain a claim. /d. The court liberally construes pro se complaints and may only 7 || dismiss them if it is “absolutely clear that the deficiencies of the complaint could not be cured by 8 || amendment.” Broughton vy. Cutter Laboratories, 622 F.2d 458, 460, (9th Cir. 1980); see also 9 || Igbal, 556 U.S. at 678. 10 B. Analysis 11 In its last order, this Court explained that Plaintiff's allegations failed to state a claim. 12 || ECF No. 4. The Court noted that Plaintiff cited several statutes, but very few facts. Jd. The Court 13 || explained that any future amended complaint must contain factual allegations supporting each 14 || element of the claims Plaintiff wished to bring. Jd. 15 Despite containing far more factual allegations, Plaintiff's Amended Complaint is still 16 || deficient. Plaintiff organized her Amended Complaint to address each element of her Title VII 17 || claim for discrimination. However, the facts contained within do not sufficiently support each 18 || element of her claim. 19 It is unclear to the Court whether Plaintiff wishes to only bring a Title VII claim for racial 20 || discrimination or whether she also wishes to bring a Title VII claim for retaliation. Accordingly, 21 || the Court will analyze both. 22 i. Discrimination Claim 23 Title VII makes it "an unlawful employment practice for an employer . . . to discriminate 24 || against any individual with respect to his compensation, terms, conditions, or privileges of 25 || employment, because of [her] . . . race [or] color." 42 U.S.C. § 2000e-2(a)(1). To state a claim for 26 || discrimination, a plaintiff must offer proof: (1) that the plaintiff belongs to a class of persons 27 || protected by Title VII; (2) that the plaintiff performed his or her job satisfactorily; (3) that the 28 || plaintiff suffered an adverse employment action; and (4) that the plaintiff's employer treated the

1 || plaintiff differently than a similarly situated employee who does not belong to the same protected 2 || class as the plaintiff. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 3 Here, Plaintiff’s allegations meet the first element because, according to the complaint, 4 || Plaintiff is Black and African American. As to the second element, Plaintiff does not support the 5 || allegation that she performed her job satisfactorily. Plaintiff says she had “similar job 6 || performance evaluations and disciplinary history as the other non-black co-workers” (ECF 8 at 3) 7 || but does not allege that these evaluations were satisfactory. Moving to the third element, an 8 || adverse employment action is one that “materially affect[s] the compensation, terms, conditions, 9 || or privileges” of employment. Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) 10 || (internal quotation and citation omitted). Plaintiff's allegations that her employee profile was 11 || deleted, and that she was removed from the work schedule adequately support an adverse 12 || employment action. As to the fourth element, Plaintiff offers only conclusory statements to 13 || support the allegation that she was treated differently than other similarly situated employees. In 14 || her second amended complaint, should she choose to file one, Plaintiff needs to allege facts that 15 || support each of these elements. 16 ii. Retaliation Claim 17 To establish a prima facie case of retaliation under Title VII, an employee must show that 18 || (1) she engaged in a protected activity; (2) her employer subjected her to an adverse employment 19 || action; and (3) a causal link exists between the protected activity and the adverse action. 20 || Cheatham v. City of Phoenix, 699 F. App’x 647, 648 (9th Cir. 2017) (citation omitted). 21 If Plaintiff is trying to raise a retaliation claim, she must provide adequate factual 22 || allegations that meet each of the elements for that claim. As to the first element, she must allege 23 || facts that explain how she engaged in protected activity. As to the second element, she must 24 || allege facts that explain the nature of the adverse employment action. Last, Plaintiff must allege 25 || facts that support a causal link between any protected activity and adverse employment action. If 26 || Plaintiff wishes to proceed with a retaliation claim, her second amended complaint must allege 27 || facts that support each of these elements. 28

1 a. Amendment 2 If Plaintiff chooses to amend, she must read this Order carefully and allege sufficient facts 3 || to show that the elements of each claim are met. Additionally, Plaintiff is advised that if she files 4 || asecond amended complaint, this amended complaint (ECF No. 8) will no longer serve any 5 || function in this case. The second amended complaint must be complete in and of itself without 6 || reference to prior pleadings or to other documents. 7 II. Conclusion 8 IT IS HEREBY ORDERED that Plaintiff's Amended Complaint at ECF No. 8 is 9 || DISMISSED without prejudice. 10 IT IS FURTHER ORDERED that if Plaintiff wishes to file a second amended complaint 11 || in this case, she must do so by August 7, 2023. 12 DATED: July 6, 2023 13 EZ pr La WORD, BRENDA WEKSLER 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28