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Whitsitt v. Amazon.Com

United States District Court, E.D. California

July 14, 2017

WILLIAM J. WHITSITT, Plaintiff,
v.
AMAZON.COM, Defendant.

          FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         On July 12, 2017, the court held a hearing on defendant Amazon's motion to dismiss the remaining claim in this action. (ECF No. 33.) Plaintiff appeared pro se, and defendant was represented by Chandra Russell. Plaintiff opposed the motion to dismiss, and defendant filed a reply. (ECF Nos. 51 & 52.) Plaintiff also filed a “second opposition, ” construed as a sur-reply. (ECF No. 55.) After arguments, the court took the matter under submission.

         Briefly, the procedural history is as follows: This court dismissed plaintiff's second amended complaint (ECF No. 13 (“SAC”)) in June 2014. (ECF No. 16) In September 2016, the Ninth Circuit affirmed dismissal of all claims but one: plaintiff's claim that “he was not hired by Amazon.com, and he was qualified for the positions for which he applied, but younger, less qualified individuals were hired.” (ECF No. 23.) Plaintiff's failure-to-hire claim under the Age Discrimination in Employment Act (ADEA) was remanded to the district court.

         In his remanded claim, plaintiff alleges that, at all relevant times, he was over 40 years old (age 59). (SAC at 3.) On August 10, 2013, he completed an Amazon online application and uploaded his resume. (Id. at 4.) He was not “directly hired” by Amazon as a permanent hire, despite being well-qualified for open positions, with experience in manufacturing, warehousing, quality control, and other fields. (Id. at 3.) Instead, Amazon “directly hired over me considerably younger 25-year-olds and less qualified applicants which I witnessed working for Amazon.” (Id.) On September 29, 2013, he was hired by SMX Staffing for a temporary position at an Amazon facility. (Id. at 4.) Plaintiff's age discrimination and retaliation claims against SMX, based on subsequent events, have been dismissed from this action.

         II. Legal standards

         A. Rules 12(b)(1) & 12(b)(6)

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) tests the subject matter jurisdiction of the court. Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039-40 (9th Cir. 2003). A Rule 12(b)(1) motion will be granted if the complaint, when considered in its entirety, on its face fails to allege facts sufficient to establish subject matter jurisdiction. Id. at 1039, n.2; Thornhill Publ'g Co. v. General Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). On a motion for lack of jurisdiction under Rule 12(b)(1), no presumptive truthfulness attaches to the plaintiff's allegations, as it does on a motion to dismiss under Rule 12(b)(6) or a motion for summary judgment under Rule 56. Id.

         Challenges to jurisdiction under Rule 12(b)(1) may be facial (i.e., on the pleadings) or factual, permitting the court to look beyond the complaint. Savage v. Glendale Union High School, Dist. No. 205, 343 F.3d 1036, 1039-40, n.2 (9th Cir. 2003); see also White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a factual challenge, “the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.” McCarthy v. Unites States, 850 F.2d 558, 560 (9th Cir. 1988). See also Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir. 1983) (consideration of material outside the pleadings did not convert a Rule 12(b)(1) motion into one for summary judgment).

         In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a “formulaic recitation of the elements of a cause of action”; it must contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). “The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “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.” Id.

         Under Rule 12(b)(6), the court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading[.]” Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Gailbraith v. County of Santa Clara, 307 F.3d 1119, 1127 (9th Cir. 2002); see also Steckman v. Hart Brewing Co., Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998) (on Rule 12(b)(6) motion, court is “not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint.”)

         B. Exhaustion of remedies

         The ADEA mandates:

No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Equal ...

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