Harshaw v. Lew

          ORDER THAT PLAINTIFF'S COMPLAINT BE DISMISSED WITH 28 DAYS LEAVE TO AMEND AS TO TITLE VII CLAIM (DOC. 1)

          SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE.

         I.INTRODUCTION

         On July 6, 2016, Plaintiff Cheryl G. Harshaw (“Plaintiff”), proceeding pro se and in forma pauperis, filed this action against Defendant Jacob Lew, the Secretary of the Department of the Treasury, apparently in his official capacity (“Defendant”). (Doc. 1.) For the reasons set forth below, Plaintiff’s complaint is DISMISSED without prejudice and with leave to amend as to her Title VII claim.

         II.DISCUSSION

         A. Screening Standard

         In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen each case, and must dismiss the case at any time if the Court determines that the allegation of poverty is untrue, or the Court determines that the action or appeal is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the Court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint are capable of being cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).

         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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint may not simply allege a wrong has been committed and demand relief. The pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation[;]” the complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 555, 570). Further, while factual allegations are accepted as true, legal conclusions are not. Id. (quoting Twombly, 550 U.S. at 555).

         B. Plaintiff Fails to Plead a Cognizable Federal Claim

         Plaintiff alleges claims for violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Internal Revenue Service Unauthorized Access, Attempted Access or Inspection of Taxpayer Records (“UNAX”) Program, 26 U.S.C. § 7213A et seq. (Doc. 1.)

         1.Plaintiff Alleges Sufficient Facts Supporting a Claim of a Violation of Title VII

         Title VII provides that it shall be an unlawful employment practice for an employer to fail to refuse, or otherwise discriminate against, any individual because of his race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(b). To establish a prima facie case of intentional discrimination (known as “disparate treatment”) under Title VII, a plaintiff must show that: “(1) he is a member of a protected class; (2) he was qualified for his position; (3) he experienced an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.” Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004); see also Raad v. Fairbanks North Star Borough School Dist., 323 F.3d 1185, 1195-96 (9th Cir. 2003) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).

         An adverse employment action is broadly defined. Ray v. Henderson, 217 F.3d 1234, 1241 (9th Cir. 2000); see also Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000) (collecting cases), and exists where an employer’s action negatively affects an employee’s compensation. See Little v. Windermere Relocation, Inc., 301 F.3d 958, 970 (9th Cir. 2002) (holding that a reduction in base monthly pay was an adverse employment action even though with commission and bonuses it might have equaled the same net pay); Univ. of Hawaii Prof’l Assembly v. Cayetano, 183 F.3d 1096, 1105-06 (9th Cir. 1999) (holding that receiving pay even a couple of days late can seriously affect an employee’s financial situation and constitutes substantial impairment under the Contracts Clause).

         Courts employ a burden-shifting analysis for Title VII disparate treatment claims. The plaintiff must first establish a prima facie case of discrimination. If the plaintiff succeeds in doing so, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its allegedly discriminatory conduct. If the defendant provides such a reason, the burden shifts back to the plaintiff to show that the employer’s reason is a pretext for discrimination. Vasquez v. County of L.A., 349 F.3d 634, 640 (9th Cir. 2004).

         Here, Plaintiff concludes that she has been denied the “terms, conditions, and privileges of employment” because a single element of her job performance evaluation was lowered from a score of “5” to a “4” based on a missing status report. Plaintiff contends her score was actually lowered because of her “Native American/African American” racial identity, while non-Native American and non-African American employees were not likewise reprimanded for the same missing report. As a result, she was “financially harmed” since she has not “received comparable ...