Burton v. Zero Waste Solutions

          ORDER VACATING APRIL 14, 2016, FINDINGS AND RECOMMENDATIONS; AND FINDINGS AND RECOMMENDATIONS TO DISMISS WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A CLAIM (ECF NOS. 10, 12) FOURTEEN-DAY (14) OBJECTION DEADLINE

          Michael J. Seng UNITED STATES MAGISTRATE JUDGE

         Plaintiff is proceeding pro se and in forma pauperis in this employment discrimination and retaliation action filed on October 14, 2015. On February 23, 2016, the Court dismissed Plaintiff's first amended complaint and directed Plaintiff to file a second amended complaint within thirty days. (ECF No. 9.) When Plaintiff failed to file an amended pleading, the undersigned issued Findings and Recommendations to dismiss this action without prejudice for failure to comply with a court order and failure to prosecute. (ECF No. 10.) Immediately following this recommendation, Plaintiff filed a second amended complaint. (ECF No. 12.) Accordingly, the undersigned will vacate the April 14, 2016, Findings and Recommendations and screen the second amended complaint.

         I. SCREENING REQUIREMENT

         The in forma pauperis statute provides, "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

         II. PLEADING STANDARD

         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, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78.

         III. PLAINTIFF'S ALLEGATIONS

         Plaintiff brings this employment discrimination and retaliation action against Zero Waste Solutions ("Zero Waste"), Carmen Rodriguez ("Carmen R."), and Rigo Rodriguez ("Rigo R.").^[1]

         Plaintiff is an African-American man who worked as a custodian for Zero Waste for over ten years. Plaintiff last worked at the Robert E. Coyle Federal Courthouse ("the Courthouse") in Fresno, California.

         In 2015, Carmen R. became Plaintiff's supervisor. Plaintiff had a lot of (unspecified) problems with Carmen R. in the past, and he believes that her appointment to a supervisory position "gave her the authority to do what she wanted to do."

         In March 2015, Rigo R. was assigned to work at the Courthouse as a manager. Soon thereafter, Rigo R. gave Plaintiff a "time-slotted work schedule, " which Plaintiff objected to and refused to sign. Because of this, Plaintiff was written up for insubordination. Plaintiff felt "discriminated against and singled out because [he] was the only person that got a … time slotted schedule."

         Carmen R. then "manipulated [Rigo R.] to stay on [Plaintiff] and write [him] up." As a result, Plaintiff was written up five more times in less than three months, and on June 26, 2015, Plaintiff was terminated from his employment. Plaintiff has text messages stating that Carmen R and Rigo R. "were after him."

         Plaintiff complained about this treatment to union representatives, but Plaintiff was told to "just do your job." Plaintiff claims that he was discriminated against because of his race and sex and retaliated against in violation of Title VII of the Civil Rights Act. Plaintiff also asserts that he was wrongfully terminated. He seeks damages and/or job reinstatement.

         IV. ...