United States District Court, D. Nevada
JASON E. CARR, Plaintiff,
PROGRESS RAIL SERVICES, and EASTRIDGE WORKFORCE SOLUTIONS, Defendant.
J. YOUCHAH UNITED STATES MAGISTRATE JUDGE.
September 19, 2019, this Court granted Plaintiff's
Application for Leave to Proceed In Forma Pauperis
(ECF No. 1), and dismissed Plaintiff's Original Complaint
(ECF No. 1-1) without prejudice for failure to state a claim
upon which relief can be granted, with leave to amend.
Thereafter, on September 26, 2019, Plaintiff timely filed his
Amended Complaint (ECF No. 7), which the Court screens below.
SCREENING PLAINTIFF'S AMENDED COMPLAINT
previous Order dismissing Plaintiff's Original Complaint
without prejudice and with leave to amend, the Court
to state a prima facie Title VII race discrimination claim,
Plaintiff must allege that he was (1) a member of a protected
class, (2) performing according to the employer's
legitimate expectations, (3) suffered an adverse employment
action, and (4) similarly situated employees outside his
protected class were treated more favorably. Pulliam v.
United Airlines, Inc., 2012 WL 3025087 at *3 (D. Nev.
2012), aff'd585 F. App'x. 408 (9th
Cir.2014); McDonnell Douglas Corp v. Green, 411 U.S.
792, 802 (1973). To state a Title VII hostile work
environment claim, Plaintiff must allege that the conduct
complained of was so severe or pervasive as to alter the
condition of his employment. Ariz. ex rel. Horne v. Geo
Grp., Inc., 816 F.3d 1189, 1206 (9th Cir. 2016) (Title
VII claim requires plaintiff to establish conduct that was
“sufficiently severe or pervasive to alter the
conditions of [his] employment and create an abusive working
environment”). Here, Plaintiff fails to allege he
suffered an adverse employment action of any kind, that
similarly situated employees outside his protected class were
treated more favorably than he was, and/or that the use of
racially charged language was sufficiently severe or
pervasive to alter his working environment.
ECF No. 5 at 2:21-3:6.
providing Plaintiff with a clear outline of what is required,
his Amended Complaint alleges only two out of four factors
necessary to state a prima facie Title VII race
discrimination claim. Pulliam, 2012 WL 3025087 at
*3. Specifically, in a cover letter accompanying his Amended
Complaint, Plaintiff identifies himself as an “African
American [m]ale, ” which is sufficient to allege that
he is “a member of a protected class.” ECF No.
7-1; see also id. Plaintiff then includes a
rejection letter from Defendant Progress Rail Services for a
facility electrician position, which establishes that
Plaintiff “suffered an adverse employment
action.” ECF No. 7 at 9; see also Pulliam,
2012 WL 3025087 at *3. Notwithstanding, at no time does
Plaintiff discuss whether he was “performing according
to the employer's legitimate expectations” and,
more importantly, if “similarly situated employees
outside his protected class were treated more
favorably.” Pulliam, 2012 WL 3025087 at *3.
Although Plaintiff attaches excerpts from an online
discussion board for Human Resources professionals about
disparate treatment in the workplace, these selections do
nothing to provide the facts necessary for Plaintiff to state
a claim. ECF No. 7 at 3-8. Even after liberally construing
Plaintiff's pro se Amended Complaint, as this Court is
required to do under Nordstrom v. Ryan, 762 F.3d
903, 908 (9th Cir. 2014), Plaintiff fails to state a prima
facie Title VII race discrimination claim.
Amended Complaint, however, states a Title VII hostile work
environment claim. Ariz. ex rel. Horne, 816 F.3d at
1206. Plaintiff submits a Complaint Investigation form he
filed with the Equal Employment Opportunity Commission in
which he states that on April 30, 2018, an employee at
Plaintiff's previous job named “Greg . . .
approached [Plaintiff] as [Plaintiff] was entering the boom
lift and [commented], ‘[a]re you up in the trees with
the monkey's [sic].'” ECF No. 7-1 at 1. When
Plaintiff replied that there were “no monkeys”
and “no trees, ” Greg repeated his comments
“a couple more times.” Id. Thereafter,
Plaintiff was informed via email that Defendant Progress Rail
Services was moving forward with its job
search. Id. at 9. Read liberally,
Plaintiff states a colorable claim for hostile work
environment under Title VII.
THEREFORE ORDERED that Plaintiff's Title VII race
discrimination claim against the Defendants is DISMISSED
without prejudice with leave to amend.
FURTHER ORDERED that Plaintiff's Title VII hostile work
environment claim against the Defendants may proceed.
FURTHER ORDERED that the Clerk of Court shall file
Plaintiff's Amended Complaint (ECF No. 7).
FURTHER ORDERED that the Clerk of Court shall issue Summons
to Defendants (1) Progress Rail Services and (2) Eastridge
Workforce Solutions. The Clerk of Court shall deliver a copy of
Plaintiff's Amended Complaint together with the Summons
to the U.S. Marshal for service.
FURTHER ORDERED that the Clerk of Court shall promptly mail