United States District Court, D. Arizona
HONORABLE RANER C. COLLINS SENIOR UNITED STATES DISTRICT
before the Court is Defendant Scottsdale Community
College's Partial Motion to Dismiss First Amended
Complaint (“Motion”). (Doc. 36.) Plaintiff's
First Amended Complaint (“FAC”) alleges
discrimination based on age and race; retaliation; hostile
work environment; and a violation of 42 U.S.C. § 1983.
Defendant asks the Court to dismiss Plaintiff's
discrimination and hostile work environment claims.
Furthermore, Defendant asks the Court to dismiss
Plaintiff's § 1983 claim, and Plaintiff responded
consenting to dismissal. For the reasons stated herein, the
Court will require Defendant to answer Plaintiff's age
discrimination and retaliation claims, but dismisses the
racial discrimination, § 1983, and hostile work
FAC alleges that he was a Caucasian, Adjunct Culinary Arts
Instructor employed by Defendant. When Plaintiff learned of
two job openings for Front of House Manager and Executive
Chef, he spoke to his supervisor-an African American
man-about applying for the positions. The supervisor told
Plaintiff he was “too old” and “too
fat” to get the jobs. Despite the discouragement,
Plaintiff applied and was asked to interview with the hiring
board. Before the interview, Plaintiff's supervisor sent
an email to the board indicating that Plaintiff had not
properly cleaned the kitchen after a class. The supervisor
later rescinded this statement, but only to Plaintiff; he did
not inform the board that his allegations were false.
was not selected for either position; the positions were
given to two African American males under the age of 40.
Plaintiff alleges these individuals were less qualified for
the position than Plaintiff.
then complained to Human Resources about the supervisor's
statements. After the complaint, Plaintiff (1) received
another false review from his supervisor, (2) had one class
cancelled, and (3) had one class given to another instructor.
With no classes remaining, Defendant did not renew its
employment contract with Plaintiff.
Standard of Review
motion under 12(b)(6) 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). While Rule 8 does not
require detailed factual allegations, “it demands more
than an unadorned, the defendant unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “[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. The
complaint must contain more than “a statement of facts
that merely creates a suspicion [of] a legally cognizable
right of action.” Twombly, 550 U.S. at 555.
Meaning, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id.
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.” Iqbal, 556 U.S. at 679. So, although a
plaintiff's specific factual allegations may be
consistent with a constitutional claim, a court must assess
whether there are other “more likely
explanations” for a defendant's conduct.
Id. at 681.
plaintiff “fails to state a claim on which relief may
be granted, ” the District Court must dismiss the
claim. 28 U.S.C. §1915(e)(2)(B)(ii). But, a
“complaint [filed by a pro se litigant] ‘must be
held to less stringent standards than formal pleadings
drafted by lawyers.'” Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam)). Dismissal
is appropriate if the complaint's deficiencies cannot be
cured by amendment; but if the pleading can be remedied
through the addition of facts, the claimant should be granted
an opportunity to amend a complaint prior to final dismissal.
Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir.
2000). However, repeated failure to cure deficiencies may
affect whether the court should grant leave to amend yet
again. Moore v. Kayport Package Exp., Inc., 885 F.2d
531, 538 (9th Cir. 1989). In fact, the Court's discretion
to deny leave to amend is particularly broad where a
plaintiff has previously been permitted to amend his
complaint. Sisseton-Wahpeton Sioux Tribe v. United
States, 90 F.3d 351, 355 (9th Cir. 1996); see Bonin
v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)
(“[A] district court does not abuse its discretion in
denying a motion to amend where the movant presents no new
facts but only new theories and provides no satisfactory
explanation for his failure to fully develop his contentions
Racial Discrimination Claim
Motion claims that Plaintiff's alleged facts fail to
demonstrate that racial animus motivated the employment
decision. In addition, Defendant argues, Plaintiff has only
made conclusory statements that the individuals hired were
similarly situated to Plaintiff.
complaint of racial discrimination in employment must plead
facts demonstrating “(1) he was a member of a protected
class, (2) he was qualified for the position he sought . . .,
(3) he suffered an adverse employment action, such as
termination, demotion, or denial of an available job, and (4)
some other circumstance suggests discriminatory
motive.” Pinder v. Emp't Dev. Dep't.,
227 F.Supp.3d 1123, 1137 (E.D. Cal. 2017) (citing
Peterson v. Hewlett-Packard Co. 358 F.3d 599, 603
(9th Cir. 2004) (finding discrimination claim must be
“more than purely conclusory allegations of alleged
discrimination, with no concrete, relevant
particulars.” (internal citation and quotation marks
omitted)). While a claimant need not establish a prima facie
case of discrimination to withstand a motion to dismiss, he
must meet the minimal pleading standards set forth in the
Federal Rules of Civil Procedure. Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 510-11 (2002); see also Al-Kidd
v. Ashcroft, 580 F.3d 949, 976 (9th Cir. 2009),
rev'd on other grounds sub nom., Ashcroft v.
Al-Kidd, 131 S.Ct. 2074 (2011) (noting that
Twombly reaffirmed the pleading requirement for
discrimination claims as stated in Swierkiewicz).
“The issue [on a motion to dismiss] is not whether a
plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims.”
Id. So, at this stage, a claimant's allegations
need only “nudge . . . the claim across the line from
conceivable to plausible.” Al-Kidd, 580 F.3d
racial discrimination allegations, however, do not cross this
line. Plaintiff alleges only that two African American men
were hired instead of him and that his supervisor was also
African American. The basic fact that all three individuals
were African American does not, in and of itself, suggest
racial bias. There is no direct evidence of racial animus.
While the supervisor said Plaintiff was “too old”
and “too fat” to get the jobs, he made no comment
about Plaintiff's race. Moreover, the proffered
circumstantial evidence-that both supervisor and the hired
employees were African American-is a barren, conclusory
allegation that does not lead a reasonable fact finder to
connect the hiring decision to racial animus. There are no
operative facts suggesting that either the supervisor or the
hiring board made its employment determination based on
Plaintiffs race. Plaintiff's allegations simply do not
raise the claim above the speculative level, and do not
provide the minimal ...