United States District Court, D. Nevada
ANTHONY M. ZECCHINO, Plaintiff(s),
JACOB J. LEW, Defendant(s)
JAMES C. MAHAN, District Judge.
Presently before the court is plaintiff Anthony Zecchino's motion for leave to file a second amended complaint. (Doc. # 20). Defendant Lew has responded (doc. # 24) and plaintiff has not replied.
Also before the court is defendant's motion to dismiss. (Doc. # 9). Plaintiff has responded (doc. # 21) and defendant has replied (doc. # 23).
This matter arises out of the alleged discrimination against plaintiff Anthony Zecchino by his employer, the Internal Revenue Service ("IRS"). Plaintiff alleges that he has been discriminated against on the basis of his national origin (Italian) and due to his disabilities (severe depression and anxiety). Plaintiff further alleges that he has been retaliated against for making equal opportunity claims ("EEO complaints"). In particular, plaintiff asserts he was subject to a "humiliating demotion" when he was reassigned to man a kiosk. In addition, plaintiff alleges that when he attempted to transfer to another IRS office outside of Nevada, a management employee ("Carey") actively attempted to thwart those opportunities.
According to plaintiff, Carey referred him to the Treasury Inspector General for the Tax Administration ("TIGTA") and the United States Attorney for the District of Nevada ("USAO") for criminal prosecution based upon his EEO complaints. Plaintiff alleges that the USAO, at the urging of the IRS, sent him a criminal "target letter" in an effort to intimidate him into abandoning his lawsuit. The target letter apparently alerts plaintiff that he may be investigated relating to allegations of theft of government funds.
II. Legal Standard
In federal court, leave to amend "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). The Supreme Court has interpreted Rule 15(a) and confirmed the liberal standard district courts must apply when granting such leave. In Foman v. Davis, 371 U.S. 178 (1962), the Court explained: "[i]n the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.-the leave sought should, as the rules require, be freely given.'" Id. at 182.
A. Motion for leave to amend
The proposed amended complaint contains the following causes of action: (1) national origin discrimination; (2) disability discrimination; and (3) retaliation/reprisal.
Defendant has indicated it has no objection to the filing of the proposed first and second causes of action. However, defendant asserts that the third cause of action for retaliation is, at least in part, legally deficient, and that the court should deny leave to file this claim because amendment would be futile.
With this claim plaintiff alleges that the IRS has retaliated against him by (1) refusing to remove him from a hostile work environment despite having knowledge of his severe anxiety and depression; (2) thwarting his efforts to transfer to another IRS office; and (3) coordinating the criminal investigation/prosecution of plaintiff with the TIGTA and/or the USAO after he raised his discrimination concerns. The parties dispute the viability of the third portion of this retaliation claim.
The Ninth Circuit has recognized multiple tests for determining whether or not there exists an employee/employer relationship for purposes of Title VII. See, e.g., Nationwide Mutual Insurance Co. v. Darden , 503 U.S. 318 (1992)(recognizing the common law agency test); Adcock v. Chrysler Corp. , 166 F.3d 1290 (9th Cir. 1999)(recognizing the economic realities test); Lutcher v. Musicians Union Local 47 , 633 F.2d 880 (9th Cir. 1980)(recognizing the common law hybrid test). In reality, "there is no functional difference between the three formulations." Murray v. Principal Financial Group, Inc. , 613 F.3d 943, 945 (9th Cir. 2010). Under any test, the court ...