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Kulvinder S. Boparai v. Eric K. Shinseki

February 21, 2013

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

FINDINGS AND RECOMMENDATIONS DISMISSING PLAINTIFF'S THIRD AMENDED COMPLAINT WITHOUT LEAVE TO AMEND (Doc. 14)

Kulvinder S. Boparai ("Plaintiff") initiated this action for violations under Title VII on May 14, 2012. (Doc. 1). Plaintiff filed his Third Amended Complaint on January 29, 2013. (Doc. 14). For the following reasons, Court recommends Plaintiff's Third Amended Complaint is DISMISSED WITHOUT 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). 9

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 asserts he has suffered retaliation and discrimination based upon his "race (Asian), religion (Sikh), national origin (Myanmar) and prior EEO activity." (Doc. 14 at 13). He alleges he filed five EEO complaints between 2006 and 2012. Id. at 5. Plaintiff 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. at 7. 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. Further, Plaintiff asserts Patricia Hall filed complaints against him "repeatedly several times." Id. at 8.

Plaintiff alleges he "was denied compensatory time off in lieu of overtime" in "retaliation for EEO activity" in August 2009. (Doc. 14 at 14). According to Plaintiff, directives of the Veterans 3 Health Administration mandate "compensatory adjustments," but Plaintiff was required to work 4 "uncompensated overtime on most days from 2005 to 2007 and frequently thereafter." Id. Plaintiff 5 reports Ms. Van Horn informed him that "there was no provision for compensatory time off," and 6 denied his request. Id. 7 Plaintiff asserts he "was denied the use of [a] contiguous second exam room on or around August 30, 2009 by Anne Seydel, Administrative Officer for [the] Bakersfield Clinic." (Doc. 9 at 1). 9 Plaintiff alleges this unreasonably interfered in patient flow and his ability to do his job effectively and thus was [hostile work environment]. Id. at 11-12. Further, Plaintiff contends the denial of the second room was "unlawful retaliation for his EEO complaints and disparate treatment for participation in EEO complaints in 2003, 11/6/2006, and 2/28/2009." Id. at 12.

In September 2010, Plaintiff reports he confronted Terry Larabee, a nurse that he believed was "overbooking patients . . . at the orders of direction of Van Horn." (Doc. 14 at 9, 13). Plaintiff contends this contributed to a hostile work environment, and was discrimination based upon race, religion, and national origin because Ms. Larabee is "Caucasian, Christian, [and of] U.S. origin." Id. Ms. Larabee filed a complaint, which Plaintiff asserts alleged "multiple false unsubstantiated allegations," and Plaintiff was investigated for creating a hostile work environment. Id. at 9. Plaintiff alleges the investigator concluded Plaintiff exhibited unprofessional conduct, and he was given a memorandum of reprimand. Id. at 9-10. Plaintiff asserts the nurse was not disciplined for the false accusations. Id. at 10, 13.

Plaintiff asserts Ms. Van Horn "falsely [and] unfairly accused [him] of refusing to see patients." (Doc. 14 at 12). Plaintiff reports he objected to the accusations and told Ms. Van Horn to address the issue with the lead physician. Id. In response:

[Ms. Van Horn] got visibly upset and verbally assaulted [P]laintiff in [a] staff meeting in front of other doctors and nurses and yelled, snarled loudly, slowly emphasizing her words, threateningly said "As you know, we do not have a lead physician. We are going to settle it right here and right now" and continued staring at the plaintiff, daring and threatening the plaintiff.

Id. (emphasis omitted). Plaintiff asserts this "felt like a slap in the face," and he "felt violated, 2 belittled, threatened, intimidated and traumatized." Id. ...


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