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Kulvinder S. Boparai v. Eric K. Shinseki

December 6, 2012

KULVINDER S. BOPARAI,
PLAINTIFF,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND (Doc. 9)

Kulvinder S. Boparai ("Plaintiff") initiated this action for violations under Title VII on May 14, 2012. (Doc. 1). Plaintiff filed his Second Amended Complaint against Erick K. Shinseki, Secretary of Veterans Affairs ("Defendant"), on October 29, 2012. (Doc. 9). For the following reasons, the Second Amended Complaint is DISMISSED WITH LEAVE TO AMEND.

I. Pleading Requirements

General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A complaint must include a statement affirming the court's jurisdiction, "a short and plain statement of the claim showing the pleader is entitled to relief; and . . . a demand for the relief sought, which may include relief in the alternative or different types of relief." Fed. R. Civ. P. 8(a). The Federal Rules adopt a flexible pleading policy, and pro se pleadings are held to "less stringent standards" than pleadings by attorneys. Haines v. Kerner, 404 U.S. 519, 521-21 (1972).

A complaint must state the elements of the plaintiff's claim in a plain and succinct manner.

Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The purpose of a complaint 3 is to give the defendant fair notice of the claims against him, and the grounds upon which the 4 complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted, 5 Rule 8 does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks and citations omitted).

Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). The Court clarified further, [A] complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." [Citation]. 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. [Citation]. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. [Citation]. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'

Iqbal, 129 S. Ct. at 1949 (citations omitted). A court should assume the truth of well-pled factual allegations and determine whether the facts would make the plaintiff entitled to relief; conclusions in the pleading are not entitled to the same assumption of truth. Id.

II. Plaintiff's Allegations

Plaintiff alleges he filed an EEO complaint in 2006. (Doc. 9 at 5). He contends Jo Ann Van Horn, site manager for the Bakersfield clinic, and other VA staff members made "multiple false allegations" against Plaintiff from 2006 to 2012 in retaliation for this activity. Id. For example, Plaintiff alleges Blanch Glazier "made unsubstantiated allegations of [him] yelling at patients" in 2006. Id. In October 2006, Plaintiff asserts "Cyndi Gill wrote [a] false complaint . . . to Dr. Gains and offered to change the language to make it appear worse if Dr. Gains would like her to do that." Id.

Plaintiff alleges he "was denied compensatory time off in lieu of overtime" in "retaliation for EEO activity" in August 2009. (Doc. 9 at 4-5). According to Plaintiff, directives of the Veterans Health Administration mandate "compensatory adjustments," but Plaintiff was required to work "uncompensated overtime on most days from 2005 to 2007 and frequently thereafter." Id. at 4. 2 Plaintiff reports Ms. Van Horn informed him that "there was no provision for compensatory time off," 3 and denied his request. Id. at 5. 4

According to Plaintiff, he was "unlawfully discriminated against based on prior EEO 5 complaints and retaliation for prior EEO complaint when he was denied the use of [a] contiguous 6 second exam room on or around August 30, 2009." (Doc. 9 at 1). Plaintiff alleges this was "disparate 7 treatment" because he had only one examination room while other physicians had two rooms. Id. He 8 asserts the denial of an additional room was "harassment . . . as it unreasonably interfered with [his] 9 work performance," and "intimidation . . . as the room was unfairly denied." Id. at 1-2.

In addition, Plaintiff reports he confronted a nurse in September 2010 that he believed was "repeatedly and improperly overbooking [his] schedule" under the direction of Ms. Van Horn. (Doc. 9 at 3, 6). The nurse filed a complaint against Plaintiff, which he asserts alleged "multiple false unsubstantiated allegations," and Plaintiff was investigated for creating a hostile work environment. Id. at 6. Plaintiff alleges the investigator concluded Plaintiff exhibited unprofessional conduct, and he was given a memorandum of reprimand in October 2010 by Dr. Yoshikawa, Director of Primary Care at the Greater Los Angeles Clinic. Id. at 2-3, 6. Plaintiff asserts the nurse was not ...


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