United States District Court, N.D. California
January 23, 2004.
CALVIN R. BOWMAN, Plaintiff,
U.S. FREIGHT SYSTEMS, INC., Defendant
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER DISMISSING NOS. C 03-3041 SI
AND C 03-3042 SI WITHOUT LEAVE TO
AMEND; AND DISMISSING NO. C 03-3043 SI
WITH LEAVE TO AMEND
On January 23, 2004, this Court heard argument on defendants' motion
to dismiss under Fed.R.Civ.Pro. 12(b)(6). Having carefully considered
the arguments of the parties and the papers submitted, the Court GRANTS
defendants' motion to dismiss with regard to the individual defendants
(case Nos. C 03-3041 SI and C 03-3042 SI), without leave to amend. With
regard to the corporate defendant, U.S. Freight Systems, Inc. (case No. C
03-3043 SI), the Court GRANTS defendant's motion to dismiss, with leave
to amend on or before February 20, 2004.
Plaintiff, pro se litigant Calvin R. Bowman, initially filed
these three lawsuits in the Southern District of Indiana. That court
transferred the actions to this district. This Court granted plaintiff's
petition to proceed in forma pauperis in all three suits.
Plaintiffs complaints against Victor Duong, David Duong and U.S. Freight
Systems, Inc., appear to concern employment-related discrimination
claims. Defendants have moved this Court to dismiss the complaints for
failure to state a claim under Fed.R.Civ.Pro. 12(b)(6).
Under Federal Rule of Civil Procedure 12(b)(6), a district court must
dismiss a complaint if it
fails to state a claim upon which relief can be granted. The
question presented by a motion to dismiss is not whether the plaintiff
will prevail in the action, but whether the plaintiff is entitled to
offer evidence in support of the claim. See Scheuer v. Rhodes,
416 U.S. 232, 236 (1974), overruled on other grounds by Davis v.
Scherer, 468 U.S. 183, 104 S.Ct. 3012 (1984).
In answering this question, the Court must assume that the plaintiff's
allegations are true and must draw all reasonable inferences in the
plaintiff's favor. See Usher v. City of Los Angeles,
828 F.2d 556, 561 (9th Cir. 1987). Even if the face of the pleadings suggests
that the chance of recovery is remote, the Court must allow the plaintiff
to develop the case at this stage of the proceedings. See United States
v. City of Redwood City, 640 F.2d 963, 966 (9th Cir. 1981).
If the Court dismisses the complaint, it must then decide whether to
grant leave to amend. The Ninth Circuit has urepeatedly held that a
district court should grant leave to amend even if no request to amend
the pleading was made, unless it determines that the pleading could not
possibly be cured by the allegation of other facts." Lopez v.
Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal
quotation marks omitted).
A. The individual defendants, David Duong and Victor Duong
Plaintiff has filed employment discrimination complaint forms. With
regard to the individual defendants, David Duong and Victor Duong,
plaintiff alleges claims under the following statutes: Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5; The Age
Discrimination in Employment Act (ADEA), 29 U.S.C. § 621; The
Americans with Disabilities Act (ADA), 42 U.S.C. § 12101; The
Rehabilitation Act, 29 U.S.C. § 701, et seq.; and
42 U.S.C. § 1981. Plaintiff also alleges a claim under "Labor S 98.7(c),"
presumably Cal. Labor Code § 98.7(c).
Employees must generally sue their employers (here, for example, U.S.
Freight Systems, Inc.), not other co-employees or workplace supervisors,
for employment discrimination claims under Title VII, the ADEA, the ADA
and the Rehabilitation Act. Miller v. Maxwell's International
Inc., 991 F.2d 583, 587-88 (Title VII and ADEA); U.S.E.E.O.C.
and Wessell v. AIC Security Investigations. Ltd., 55 F.3d 1276, 1279
(7th Cir. 1995) (ADA): Stern v. California State Archives, et
al., 982 F. Supp. 690, 692 (E.D. Cal. 1997)(ADA): and Campos v.
San Francisco State University, 1999 WL 1201809 (N.D. Cal.1999) Cal.
at *9-10 (ADA).
With respect to plaintiff's apparent claim under Cal. Labor Code §
98.7, plaintiff apparently received Right-to-Sue letters from the
California Department of Fair Employment & Housing, possibly in
connection with this claim. The relationship between plaintiff and the
individual defendants remains unclear from the complaint. However, under
California law, even supervisors are not employers; thus they cannot be
held liable for discrimination. See Janken v. GM Hughes
Electronics, 46 Cal.App.4th 55, 80 (1996) ("only employers-and not
individual supervisory employees-are at risk of liability for
Plaintiff also alleges a claim based on 42 U.S.C. § 1981. While
this might otherwise apply to individuals, it relates only to racial
discrimination done under color of state law. As is discussed in the next
section, plaintiff has not pled and, by all appearances, cannot plead
state action in this case.
For these reasons, this Court GRANTS defendants' motion to dismiss the
complaints against the individual defendants, David Duong and Victor
Duong, without leave to amend. (Nos. C 03-3041 SI and C 03-3042 SI).
B. The corporate defendant, U.S. Freight Systems, Inc.
Plaintiff has based his claims against U.S. Freight Systems, Inc. on
the following statutes: The Age Discrimination in Employment Act (ADEA),
29 U.S.C. § 621; The Americans with Disabilities Act (ADA),
42 U.S.C. § 12101; The Rehabilitation Act, 29 U.S.C. § 701, et
seq.; and equal rights under law, 42 U.S.C. § 1981. Plaintiff
also alleges a claim under "Labor S 98.7(c)," presumably Cal. Labor Code
§ 98.7(c), and in his statement of legal claim, plaintiff mentions
"Labor Code § 221 and 224," presumably also sections of California's
In order to state a claim under the ADEA, a plaintiff must
allege: (1) that he belongs to a protected class (an individual between
forty and seventy years of age); (2) that he was performing his job
duties satisfactorily; (3) that he suffered an adverse employment action;
and (4) that he was replaced by a "substantially younger employee with
equal or inferior qualifications." O'Connor v. Consolidated Coin
Caterers Corp., 517 U.S. 308, 312 (1996); Nidds v. Schindler
Elevator Corp., 113 F.3d 912, 917 (9th Cir. 19970 (citation
omitted); see also Godwin v. Hunt Wesson, Inc., 150 F.3d 1217,
1220 (9th Cir. 1998). Plaintiff has not alleged these things in his
complaint; by this order, plaintiff is given leave to
amend his complaint to allege facts, if he can, which would state a
claim under the ADEA.
In order to state a claim under the ADA, a plaintiff must
allege several factors to state a prima facie case for relief. The
employee must allege: (1) that he is a disabled person within the meaning
of the ADA; (2) that he is qualified, with or without reasonable
accommodation, to perform the essential functions of the job that he
holds; and (3) that he has suffered an adverse employment decision
because of his disability. Snead v. Metro Prop. & Casualty Ins.
Co., 237 F.3d 1080, 1087 (9th Cir. 2001); Nunes v. Wal-Mart
Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999); Sanders v.
Arneson Products, Inc., 91 F.3d 1351, 1354 (9th Cir. 1996).
Plaintiff has not alleged these things in his complaint; by this order,
plaintiff is given leave to amend his complaint to allege facts, if he
can, which would state a claim under the ADA
To state a claim for disability discrimination under the
Rehabilitation Act, plaintiff must show: (1) that he is disabled
within the meaning of the Act; (2) that he is otherwise able to perform
the essential functions of the job; (3) that the defendant is a federal
agency, and (4) that the defendant took adverse employment action solely
because of his disability. See Wong v. Regents of University of
California, 192 F.3d 807, 816 (9th Cir. 1999); Mustafa v. Clark
County Sch. Dist., 157 F.3d 1169, 1174 (9th Cir. 1998); Dempsey
v. Ladd, 840 F.2d 638, 640 (9th Cir. 1988). It does not appear that
defendant U.S. Freight Systems, Inc. is a federal agency. Therefore,
plaintiff's claim under the Rehabilitation Act is dismissed without leave
Plaintiff also alleges a claim under 42 U.S.C. § 1981, which
prohibits discrimination based on "race, ethnic background, ancestry,
and/or national origin committed under color of law." Mustafa v.
Clark County School Dist., 157 F.3d 1169, 1180 (9th Cir. 1998). One
essential element of a § 1981 claim is that the defendant acted under
color of state law. An action is considered to be taken "under color of
state law if there is a "[m]isuse of power, possessed by virtue of state
law and made possible only because the wrongdoer is clothed with the
authority of state law." United States v. Classic,
313 U.S. 299, 326, 61 S.Ct. 1031, 1043 (1941). It does not appear that U.S.
Freight Systems, inc. was acting under color of state law when it
employed or discharged plaintiff. Therefore, plaintiff's claim under
42 U.S.C. § 1981 is dismissed without leave to amend.
Finally, plaintiff has alleged a claim under "Labor S 98.7(c)" and in
his statement of legal claim, plaintiff mentions "Labor Code § 221
and 224," presumably all sections of California's Labor Code.
Plaintiff apparently received a Right-to-Sue letter from
California's Department of Fair Employment & Housing, possibly in
connection with the statutory claims. As presently stated, the complaint
does not state a claim in this regard. California Labor Code § 98.7
concerns the exhaustion of administrative remedies regarding
discrimination claims, § 221 concerns repayment of wages to employer,
and § 224 concerns authorized deductions.
It appears that defendant, U.S. Freight Systems once employed plaintiff
and at some point terminated his employment. Plaintiff alleges wrongful
termination, apparently allegedly in the form of retaliation for a "Labor
Board Claim," and he seeks payment for lost time. He also alleges that
unauthorized deductions from his paycheck occurred. Plaintiff received a
Right to Sue letter, dated March 10, 2003, from the Equal Employment
Opportunity Commission (EEOC), allowing him to sue within ninety days.
Plaintiff filed his suit against U.S. Freight on March 28, 2003. Compl.
He also received a Right to Sue letter from California's Department of
Fair Employment and Housing, dated February 14, 2003, allowing him to
file suit within one year.
Plaintiff filed his lawsuit in a timely fashion, but he has not yet
stated a claim. Therefore, this Court GRANTS defendant's motion to
dismiss the complaints. However, plaintiff is given permission to file an
amended complaint, alleging claims under the ADEA (age discrimination)
and the ADA (disability discrimination). Plaintiff may also allege a
claim under Title VII (employment discrimination) against his employer,
U.S. Freight Systems, Inc., if he chooses. Any amended complaint
must be filed on or before February 20, 2004.
For the foregoing reasons, the Court GRANTS defendants motion to
dismiss with respect to the individual defendants, David and Victor
Duong, without leave to amend, and DISMISSES cases C 03-3041 SI and C
03-3042 SI. The Court GRANTS defendant's motion to dismiss with regard to
the corporate defendant, U.S. Freight Systems, Inc.(C 03-3043 SI), with
leave to amend on or before [Docket ## 8, 9, 10]
IT IS SO ORDERED.
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