The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN CLAIMS WITHOUT LEAVE TO AMEND AND GRANTING PLAINTIFF LEAVE TO AMEND OTHER CLAIMS (Doc. 1)
Plaintiff Javier Chacon ("Plaintiff"), appearing pro se and proceeding in forma pauperis, filed the instant complaint on December 30, 2010. (Doc. 1). He names the Housing Authority of the County of Merced as a Defendant ("Defendant"). Plaintiff alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq ("Title VII"), as well as state law causes of action for wrongful termination/constructive discharge and intentional infliction of emotional distress.
Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof if the court determines that the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment.
A complaint 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). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id. at 1949.
A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the Court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976), construe the pro se pleadings liberally in the light most favorable to the plaintiff, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
B. Plaintiff's Allegations
Plaintiff is a forty-seven-year-old Hispanic male who was employed by the Housing Authority of the County of Merced as a Maintenance Supervisor for more than six years. He alleges that throughout his employment as a Maintenance Supervisor, he requested his own computer at his primary job site located in Dos Palos, California. He contends that despite numerous requests, he was never given exclusive access to a computer, laptop, desktop, or mainframe which were essential to performing his job duties. Instead, he had to share a computer with his supervisor, Debbie Nichols, who needed the computer to complete her own work and, therefore, at times, he was unable to have access to the computer. When the computer was not available, Plaintiff had to drive twenty-one miles to Los Banos, California to gain computer access so that he could perform his job duties. Moreover, Program Director, Gina Thexton, and Executive Director, Rennise Ferrario, insisted that e-mails be sent to Plaintiff that could only be accessed at the Los Banos site.
Although Plaintiff was deprived of computer access, Plaintiff contends two other Maintenance Supervisors, Mike Shillings and Robert Algiers, were given exclusive access to a computer at their main offices. Both Shillings and Algiers were Caucasian males. Mike Shillings had been employed as a Maintenance Foreman in Merced, California for approximately one and a half years. Robert Algiers was employed in Livingston, California.*fn1
Plaintiff makes several allegations of discrimination in the complaint. First, he contends that his employment was terminated in retaliation for participating in an investigation against Defendant conducted by the Board of Commissioners of the Housing Authority of the County of Merced. Plaintiff also alleges that Program Director, Gina Thexton, made unwanted sexual advances toward Plaintiff. Finally, Plaintiff contends that "discrimination based on religious fervor or lack thereof was committed against [him] in the form of a Men's Breakfast meeting held during work hours." (Doc. 1 at pg. 5.)
Plaintiff was put on an unpaid leave of absence on or about March 26, 2010. He filed a claim with the Equal Employment Opportunity Commission on or about July 22, 2010, and received a right to sue letter on September 30, 2010. (Doc. 1 at pg. 12.) Defendant has informed Plaintiff that his prior position as Maintenance Foreman cannot be guaranteed and future employment in other positions may be unavailable.
As a result of the above, Plaintiff contends he has suffered a continual loss of earnings and emotional distress. He alleges violations of Title VII, wrongful termination/constructive discharge and intentional infliction of emotional distress as causes of action. He ...