United States District Court, D. Nevada
MIGUEL A. ORTIZ, Plaintiffs,
PACIFIC UNION FINANCIAL, Defendants.
J. KOPPE United States Magistrate Judge
is proceeding in this action pro se and requested
authority pursuant to 28 U.S.C. § 1915 to proceed in
forma pauperis. Docket No. 1. On April 14, 2016, the
undersigned granted Plaintiff's request to proceed in
forma pauperis, screened his complaint pursuant to 28
U.S.C. § 1915, and dismissed the complaint with leave to
amend. Docket No. 2. The Court found that the complaint
attempted to allege claims under Title VII of the Civil
Rights Act of 1964 (“Title VII”). Id. at
2. The Court further found that Plaintiff failed to allege
that he had exhausted his administrative remedies, and failed
to establish a prima facie case of discrimination
under Title VII. Id. at 3. The Court provided
Plaintiff an opportunity to cure those defects. Id.
has now filed an amended complaint on the Court's form
complaint for 42 U.S.C. § 1983 actions. Docket No. 4.
However, the Court again analyzes Plaintiff's complaint
under Title VII because Plaintiff alleges employment
discrimination. See Id. at 4 (alleging that employer
“discriminated against my gender and my race.”)
In order to bring a Title VII claim in district court, a
plaintiff must first exhaust his administrative remedies.
See, e.g., B.K.B. v. Maui Police Dep't,
276 F.3d 1091, 1099 (9th Cir. 2002). If a plaintiff can
demonstrate that he has exhausted his administrative
remedies, he must next prove a prima facie case of
discrimination under Title VII. In order to prove a prima
facie case of discrimination under Title VII, a
plaintiff must establish that: (a) he belongs to a protected
class; (b) he was qualified for his job; (c) he was subjected
to an adverse employment action; and (d) similarly situated
employees not in Plaintiff's protected class received
more favorable treatment. Moran v. Selig, 447 F.3d
748, 753 (9th Cir. 2006) (internal citation omitted).
alleges that he left another job to begin working for
Defendant Pacific Union Financial in February 2015. Docket
No. 4 at 3. Plaintiff asserts that, despite receiving
inadequate training and being without a supervisor for two
and a half months, he managed to close several loans.
Id. at 4-5. Plaintiff further submits that he was
given more difficult work assignments than his female
colleagues. Id. at 4. Plaintiff alleges that he was
terminated on June 28, 2015 because of performance issues.
Id. at 5. Plaintiff submits that female colleagues
with similar performance records to his own were not
terminated. Id. Plaintiff states that he filed a
discrimination charge with the Equal Employment Opportunity
Commission (“EEOC”) after he was terminated.
Id. at 6. Plaintiff also provides a copy of a right
to sue letter that the EEOC sent him on February 3, 2016,
after concluding its investigation of his charge.
Id. at 10.
Court finds that Plaintiff has exhausted his administrative
remedies by timely filing a complaint with the EEOC. The
Court also finds that Plaintiff has established a prima
facie case of discrimination under Title VII. First,
Title VII prohibits employers from engaging in gender-based
discrimination. 42 U.S.C. § 2000e-2(a)(1). Thus, because
Plaintiff alleges gender discrimination, he has established
that he is part of a protected class. See, e.g.,
Docket No. 4 at 4. Second, the Court construes
Plaintiff's assertion that he left another job to work
for Defendant, and his descriptions of his performance, as
alleging that he was qualified for his position. See
Id. at 3-5. Third, Plaintiff alleges that he was
subjected to adverse employment actions when he was given
more difficult assignments than his female colleagues, and
later when he was fired. See Id. Finally, Plaintiff
alleges that similarly situated female employees were given
easier assignments and were not terminated for performance
issues. See Id. The Court thus finds the allegations
sufficient at this stage to allow the case to move forward.
be that Plaintiff intended to bring claims in addition to the
gender discrimination claim outlined above. See,
e.g., id. at 4, 5-6 (referring to race
discrimination and retaliation). Having found that
Plaintiff's complaint is sufficient for screening
purposes with respect to at least one claim against
Defendant, however, the Court declines to address any
additional claims that may be present in the complaint.
See, e.g., Jenkins v. Lab. Corp. of Am.,
2013 U.S. Dist. Lexis 118008, at *6 n.1 (D. Nev. Aug. 20,
2013). Moreover, nothing herein should be construed as
preventing Defendant from filing a motion to dismiss once it
has appeared on any grounds it deems appropriate, including
whether Plaintiff has sufficiently stated a claim. See
Teahan v. Wilhelm, 481 F.Supp.2d 1115, 1119 (S.D. Cal.
2007); see also Bem v. Clark Cty. Sch. Dist., 2015
U.S. Dist. Lexis 7757, at*6 n.1 (D. Nev. Jan. 21, 2015).
on the foregoing and good cause appearing, therefore, IT IS
1. The Clerk of the Court shall file the Complaint and shall
issue a Summons to Defendant, and deliver the same to the
U.S. Marshal for service. Plaintiff shall have twenty days in
which to furnish the U.S. Marshal with the required Form
USM-285. Within twenty days after receiving from the U.S.
Marshal a copy of the Form USM-285, showing whether service
has been accomplished, Plaintiff must file a notice with the
court identifying whether Defendant was served. If Plaintiff
wishes to have service again attempted on an unserved
defendant, a motion must be filed with the court identifying
the unserved defendant and specifying a more detailed name
and/or address for said defendant, or whether some other
manner of service should be attempted. Pursuant to Rule 4(m)
of the Federal Rules of Civil Procedure, service must be
accomplished within 90 days from the date this order is
2. From this point forward, Plaintiff shall serve upon
Defendant, or, if appearance has been entered by counsel,
upon the attorney(s), a copy of every pleading motion or
other document submitted for consideration by the court.
Plaintiff shall include with the original papers submitted
for filing a certificate stating the date that a true and
correct copy of the document was mailed to Defendant or
counsel for Defendant. The Court may disregard any paper
received by a District Judge or Magistrate Judge that has not
been filed with ...