United States District Court, D. Arizona
S. Willett United States Magistrate Judge.
issue is pro se Plaintiff Michael Tryals' Application to
Proceed in District Court Without Prepaying Fees or Costs
(Doc. 2). The Court finds that Plaintiff does not have
sufficient means to pay the Court's fees and will grant
the Application. However, as set forth below, upon screening
Plaintiff's Complaint (Doc. 1) pursuant to 28 U.S.C.
§ 1915(e)(2), the Court finds that Plaintiff has not
satisfied the pleading requirements of the Federal Rules of
Civil Procedure and fails to state a cause of action. The
Court therefore dismisses the Complaint (Doc. 1) without
prejudice and grants Plaintiff leave to file a First Amended
Complaint consistent with the findings of the Court set forth
Statutory Screening of In Forma Pauperis Complaint Pursuant
to 28 U.S.C. § 1915 (e)(2)
Court must dismiss a complaint or portion thereof if a
plaintiff has raised claims that are legally frivolous or
malicious, that fail to state a claim upon which relief may
be granted, or that seek monetary relief from a defendant who
is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2).
A pleading must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2) (emphasis added). While
Rule 8 does not demand detailed factual allegations,
“it demands more than an unadorned, the
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. “[A] complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Id. (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. “Determining whether a complaint states a
plausible claim for relief [is] . . . a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
Thus, although a plaintiff's specific factual allegations
may be consistent with a claim for relief, a court must
assess whether there are other “more likely
explanations” for a defendant's conduct.
Id. at 681.
the United States Court of Appeals for the Ninth Circuit has
instructed, courts must “continue to construe pro se
filings liberally.” Hebbe v. Pliler, 627 F.3d
338, 342 (9th Cir. 2010). A “complaint [filed by a pro
se litigant] ‘must be held to less stringent standards
than formal pleadings drafted by lawyers.'”
Id. (quoting Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam)).
Court determines that a pleading could be cured by the
allegation of other facts, a pro se litigant is entitled to
an opportunity to amend a complaint before dismissal of the
action. See Lopez v. Smith, 203 F.3d 1122, 1127-29
(9th Cir. 2000) (en banc). “It is also clear that
section 1915(e) not only permits but requires a district
court to dismiss an in forma pauperis complaint that
fails to state a claim.” Id. at 1127.
Complaint states that he was discriminated against by the
Defendant pursuant to Title VII of the Civil Rights Act of
1964 “on several occasions from August 2014-September
2015.” (Doc. 1, 1-2). Plaintiff indicates that (i) he
filed charges with the U.S. Equal Employment Opportunity
Commission (“EEOC”), (ii) he received a Right to
Sue letter, and (iii) the EEOC filed a r iation charge
against the Defendant. (Id. at 2). Plaintiff also
states that an NLRB arbitration hearing is scheduled for
November 2016. (Id.) Plaintiff seeks monetary
damages “for discrimination and wrongful termination
and lost wages and pain and suffering.” (Id.).
VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.,
(“Title VII”) provides that “[i]t shall be
an unlawful employment practice for an employer (1) to fail
or refuse to hire or to discharge any individual, or
otherwise discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color,
religion, sex, or national origin . . . .” 42 U.S.C.
§ 2000e-2(a)(1). In a claim for discrimination pursuant
to Title VII, a plaintiff must “offer evidence that
‘give[s] rise to an inference of unlawful
discrimination.'” Lowe v. City of
Monrovia, 775 F.2d 998, 1005 (9th Cir. 1985),
as amended, 784 F.2d 1407 (1986) (quoting Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981)). A plaintiff may prove discrimination by direct
evidence that a defendant's challenged employment action
was either intentionally discriminatory or that it had a
discriminatory effect on the plaintiff. See Jespersen v.
Harrah's Oper. Co., Inc., 444 F.3d 1104, 1108-09
(9th Cir. 2006). In the absence of direct
evidence, a plaintiff may establish by circumstantial
evidence a prima facie case of discrimination by proving that
(i) plaintiff is a member of a protected class, (ii)
plaintiff was qualified for his position and performing his
job satisfactorily, (iii) plaintiff experienced an adverse
employment action, and (iv) similarly situated employees
outside plaintiff's protected class were treated more
favorably, or other circumstances surrounding the adverse
employment action give rise to an inference of
discrimination. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973); Hawn v. Executive
Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th
Cir. 2010). Plaintiff must show that discrimination was
either the sole reason for or a “motivating
factor” in the employer's adverse employment
decision. See Costa v. Desert Palace, Inc., 299 F.3d
838, 853-54 (9th Cir. 2002) (en banc) (“Put
simply, the plaintiff in any Title VII case may establish a
violation through a preponderance of evidence (whether direct
or circumstantial) that a protected characteristic played
‘a motivating factor.'”), aff'd,
539 U.S. 90 (2003).
plaintiff bears the burden of proof under Title VII.
Burdine, 450 U.S. at 253 (“The ultimate burden
of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at
all times with the plaintiff.”) If the plaintiff
establishes by a preponderance of the evidence a prima facie
case of discrimination, then “the burden of production,
but not persuasion, shifts to the defendant to articulate
some legitimate, nondiscriminatory reason for the challenged
action.” Chuang v. Univ. of Cal. Davis, Bd. of
Trs., 225 F.3d 1115, 1123-24 (9th Cir. 2000).
Plaintiff must then show that defendant's stated reason
for the adverse employment action was a mere
“pretext” for unlawful discrimination or
discriminatory in its application. McDonnell Douglas
Corp., 411 U.S. at 804. “[A] plaintiff can prove
pretext in two ways: (1) indirectly, by showing that
the employer's proffered explanation is ‘unworthy
of credence' because it is internally inconsistent or
otherwise not believable, or (2) directly, by
showing that unlawful discrimination more likely motivated
the employer.” Chuang, 225 F.3d at 1127
(emphasis added) (citing Godwin v. Hunt Wesson,
Inc., 150 F.3d 1217, 1220-22 (9th Cir.
1998)); see Burdine, 450 U.S. at 256. “All of
the evidence [as to pretext] - whether direct or indirect -
is to be considered cumulatively.” Raad v.
Fairbanks North Star Borough School Dist., 323 F.3d
1185, 1194 (9th Cir. 2003). Where the evidence of
pretext is circumstantial, rather than direct, the plaintiff
must present “specific” and
“substantial” facts showing discrimination.
Godwin, 150 F.3d at 1222.
VII also prohibits discrimination against an individual
“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's antir iation provision forbids employer actions
that ‘discriminate against' an employee (or job
applicant) because he has ‘opposed' a practice that
Title VII forbids or has ‘made a charge, testified,
assisted, or participated in' a Title VII
‘investigation, proceeding, or hearing.'”
Burlington Northern and Santa Fe Ry. Co. v. White,
548 U.S. 53, 59 (2006) (quoting 42 U.S.C. § 2000e-3(a)).
Whereas the anti-discrimination provision of Title VII seeks
to secure a workplace free from discrimination on the basis
of race, religion, sex, or national origin, the anti-r iation
provision of Title VII prohibits employers from
“interfering (through r iation) with an employee's
efforts to secure or advance enforcement of [Title VII's]
basic guarantees.” Id. at 63. In a r iation
claim, the plaintiff must prove by a preponderance of
evidence that (i) plaintiff engaged in or was engaging in
“protected activity”; (ii) the employer
subsequently subjected the plaintiff to adverse employment
action; and (iii) that “a causal link exists between
the two.” See Dawson v. Entek Int'l, 630
F.3d 928, 936 (9th Cir. 2011).
addition, a plaintiff who believes he has been discriminated
against on either theory must file a charge within the
statutory time period and serve notice upon the defendant
against whom the charge is made. See 42 U.S.C.
§ § 2000e-5(b), (e)(1); National R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 109 (2002). A charge must
be filed within 180 days after the alleged unlawful
employment practice occurred and notice of the charge
(including the date, place, and circumstances of the alleged
unlawful employment practice) must be served upon the
Defendant within ten days. However, if a plaintiff initially
institutes proceedings with the Arizona Civil Rights
Division, the charge must be filed within 300 days of the
unlawful employment practice alleged. 42 U.S.C. §
2000e-5(e)(1); Morgan, 536 U.S. at 109. Though not a
jurisdictional prerequisite to suit in federal court, the
timely filing of a charge of discrimination is “a
requirement that, like a statute of limitations, is subject
to waiver, estoppel, and equitable tolling.” Zipes
v. Trans World Airlines, Inc. Independent Federation of
Flight Attendants v. Trans World Airlines, Inc., 455
U.S. 385, 393 (1982). A claim for discrimination under Title
VII is timely filed in District Court if filed within ninety
days after the issuance of the right-to-sue letter. See
O'Donnell v. Vencor Inc., 466 F.3d 1104, 1109
(9th Cir. 2006) (citing 42 U.S.C. §
2000e-5(f)(1)). The timely filing of a complaint in District
Court does not satisfy the requirement of timely filing a
charge with the EEOC or appropriate state agency.
though Plaintiff has timely filed his Complaint within ninety
days of the issuance of the EEOC's Notice of Right to Sue
letter attached to the Complaint, Plaintiff has failed to
allege facts sufficient for the Court to find that Plaintiffs
charges were timely made. Plaintiff indicates only that he
filed charges in January 2015, a date inconsistent with
discrimination alleged ...