United States District Court, E.D. California
CHERYL G. HARSHAW, Plaintiff,
v.
JACOB J. LEW, Secretary, Department of the Treasury, Defendant.
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
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