The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is proceeding pro se and in forma pauperis in this action, which was referred to the undersigned by E.D. Cal. L.R. 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). After the court screened and dismissed plaintiff's original complaint with leave to amend (see dkt. no. 4), plaintiff filed a first amended complaint on June 20, 2012. (Dkt. No. 5.)
Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any time if it determines that the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless.
Neitzke, 490 U.S. at 327.
To avoid dismissal for failure to state a claim, a complaint must contain more than "naked assertions," "labels and conclusions," or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[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). Furthermore, a claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma pauperis is entitled to notice and an opportunity to amend before dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230.
According to the first amended complaint and attached documents (see
dkt. no. 5), plaintiff is an individual older than 40*fn1
who applied online for a credit specialist (senior collector)
position with defendant Travis Credit Union in Fairfield, California
in or about June 2009 and again in or about December 2009. Defendant
did not respond to the first application, but on May 3, 2010,
plaintiff received a form electronic mail message stating that
defendant had received his application and would contact plaintiff if
plaintiff's qualifications matched
defendant's needs. Since then, plaintiff has had no further contact
Plaintiff holds two degrees (a Bachelor of Arts in English from the University of Peshawar in Pakistan and a Bachelor of Science in Business Administration from Northeastern Illinois University in Chicago). He alleges that he came to the United States in 1972 and worked here for over 35 years (of which 20 years were in California). He further states that he worked for four years at the Fairfield office of Providian Financial Corporation (now JP Morgan Chase), but was laid off due to company downsizing. Thereafter, he worked as a security officer until a car accident in March 2007 rendered him disabled. According to plaintiff, he underwent physical therapy and is now again able to walk and drive a car. This, along with his financial hardship resulting from the hospitalization and related debt, prompted him to find a job.
Plaintiff contends that he was discriminated against due to his age when defendant failed to hire him. He claims that he knows of, in his words, three "girls" who worked for defendant in the past: (1) Ms. Nira Malik "who joined Travis Credit Union in 2003 after high school graduation but later on quit her job in order to work for her dad's business"; (2) Ms. Rabia Farooqi, "who is still working for Travis Credit Union"; and (3) Ms. Halla Baig "who joined Travis Credit Union in 2010 but later changed jobs and joined JP Morgan at their Davis branch...She works part time and goes to college." (Dkt. No. 5 at 2-3.)
Attached to plaintiff's first amended complaint is a U.S. Equal Employment Opportunity Commission ("EEOC") Charge of Discrimination dated June 29, 2010. (Dkt. No. 5 at 11.) In the EEOC Charge of Discrimination, plaintiff alleged discrimination based on his age. (Id.) Subsequently, on April 10, 2012, the EEOC dismissed plaintiff's charge, stating that:
Based upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge. (Dkt. No. 5 at 13.) The notice also advised plaintiff that he should file any lawsuit based on his age discrimination claim within 90 days of receipt of the notice. (Id.) Plaintiff then commenced this action on May 2, 2012, alleging a claim of age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA").
In its previous screening order, the court observed that the ADEA makes it unlawful for an employer "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 age." 29 U.S.C. § 623(a)(1). These prohibitions apply to "individuals who are at least 40 years of age." 29 U.S.C. § 631(a); see also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1280 (9th Cir. 2000). "A plaintiff alleging discrimination under the ADEA may proceed under two theories of liability: disparate treatment or disparate impact. Proof of disparate treatment requires a showing that the employer treats some people less favorably than others because of their age. In contrast, discriminatory motive or intent need not be shown under a disparate impact theory, which challenges facially neutral employment practices which have a discriminatory impact. However, under the latter theory the plaintiff must actually prove the discriminatory impact at issue, rather than merely an inference of discriminatory impact." Rose v. Wells Fargo & Co., 902 F.2d 1417, 1421 (9th Cir. 1990) (citations omitted).
The court noted that it was clear that plaintiff is proceeding under a disparate treatment theory and not under a disparate impact theory in this case. Plaintiff does not point to a facially neutral hiring practice by defendant that has a discriminatory impact -- instead, plaintiff essentially alleges that defendant intentionally failed to hire him because of his age, i.e. that defendant engaged in disparate treatment on the basis of age.
The court further explained that, in an ADEA case, "[a] plaintiff must first establish a prima facie case of discrimination. If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for its employment decision. Then, in order to prevail, the plaintiff must demonstrate that the employer's alleged reason for the adverse employment decision is a pretext for another ...