This case, in which plaintiff is proceeding in forma pauperis and in propria persona, was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and Eastern District of California Local Rule 302(c)(21). Currently noticed for hearing on November 2, 2011 is defendant's motion to dismiss plaintiff's first amended complaint pursuant to Federal Rules of Civil Procedure ("Rule") 12(b)(1) for failure to allege subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim. Dckt. No. 27. Alternatively, defendant moves pursuant to Rule 12(e) for a more definite statement. Id. For the reasons stated herein, the November 2, 2011 hearing will be vacated and defendant's motion to dismiss will be granted with leave to amend.
On November 15, 2010, plaintiff filed an employment discrimination complaint against his former employer San Joaquin Regional Rail Commission pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 ("Title VII"). Compl., Dckt. No. 1, ¶ 3. According to the complaint, the acts complained of in this suit are the termination of plaintiff's employment and the following other acts: "retaliation, favoritism, liking and disliking, raise denial, promotion." Id. ¶ 4. The complaint alleges that defendant discriminated against plaintiff on the basis of his race or color, his religion, and his national origin. Id. ¶ 5. The complaint further alleges that the basis surrounding plaintiff's claim of discrimination are as follows: "(1) my supervisor denied my one day off to perform my religious activity" and "(2) religion." Id. ¶ 6. According to the complaint, the alleged discrimination occurred on or about August or September 2008. Id. ¶ 7. Plaintiff was issued a Notice-of-Right-to-Sue letter by the Equal Employment Opportunity Commission on September 2, 2010. Id. ¶ 9, p.4.
Defendant moved to dismiss plaintiff's complaint, and on June 7, 2011, the court granted defendant's motion to dismiss and provided plaintiff leave to file an amended complaint. Dckt. Nos. 8, 21. The court noted that plaintiff's complaint did not allege any facts supporting a Title VII discrimination or retaliation claim. Dckt. No. 21 at 5. Specifically, the complaint failed to "allege a connection between any alleged discrimination and plaintiff's color, religion, and/or national origin, as [plaintiff] state[d] in the complaint, or that he was treated differently than similarly situated persons outside his protected class," and failed to "allege that [plaintiff] engaged in any protected activity and that he suffered an adverse personnel action as a result." Id. The order further noted that it was "unclear from plaintiff's complaint whether and on what basis [plaintiff] seeks to allege claims for 'favoritism, liking and disliking, raise denial, [and] promotion" or what is meant by those claims." Id. at 5-6. Therefore, the complaint was dismissed and plaintiff was granted leave to file an amended complaint. Id. at 6. Plaintiff was instructed that any amended complaint "shall identify the specific Title VII theory or theories on which plaintiff's complaint is based and shall state the specific factual conduct that supports plaintiff's right to relief on each such theory. In other words, plaintiff shall state the specific conduct by defendant that plaintiff alleges was discriminatory, retaliatory, and/or otherwise in violation of his Title VII rights, and he shall separate each factual allegation in his complaint into its own paragraph, so that defendant can answer the allegations in that paragraph." Id.
After obtaining two extensions of time, plaintiff filed an amended complaint on August 12, 2011. Dckt. No. 26. The amended complaint alleges that plaintiff was "wrongfully terminated because of discrimination," id. at 3, and alleges the following facts:
* Plaintiff "was working for [defendant] in August/September 2008 when [he] requested a one day off to perform [his] religious activities," that plaintiff "gave a written time off slip to [his] new supervisor," and that the supervisor verbally denied the request for time off. Id. at 1.
* Plaintiff was required to provide a doctor's note to his employer when he took one day off due to illness, even though the employer's policy only requires a doctor's note if an employee takes three days off due to illness. Id.
* Plaintiff was required "to work almost 15 hours a day" while other employees "were working very short shifts." Id. at 1-2.
* Plaintiff "was carrying cash in the amount of $5000 all day long in San Jose" and that "[t]his was all in record with [defendant] that how [plaintiff] was disliked by [his] supervisor." Id. at 2.
* In March 2007, employees decided to hold a meeting to discuss unionizing and plaintiff's employer blamed plaintiff for arranging the meeting and instructed plaintiff to stop arranging those types of meetings, which plaintiff alleges he never arranged. Id.
* Plaintiff received two performance evaluations in September 2007. Id.
* On April 29, 2009, plaintiff "was terminated for dishonesty, theft, and embezzling money for $23,000" and his case "was sent to the Stockton Police Department" without plaintiff even being "given a chance to say something." Plaintiff was questioned by a police detective and a deputy district attorney, and plaintiff "was found not guilty by both of them." Id. at 3.
* Plaintiff was the only employee to receive employee of the month in March 2005, and plaintiff received a certificate for goal achievements, completed all of his trainings on time, and received several emails from his customers. Id.
* Plaintiff hurt his back in a train wreck in September 2004, was off work for almost ten days, and was paid by worker's compensation. After that, plaintiff had back pain several times throughout his employment but his ...