United States District Court, D. Hawaii
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS FOURTH AMENDED COMPLAINT
Susan Oki Mollway United States District Judge.
Defendant Brigham Young University-Hawaii (“BYU Hawaii”) moves to dismiss Plaintiff Jinendra Jinadasa’s Fourth Amended Complaint. The motion is granted in part and denied in part. The court also strikes Jinadasa’s untimely supplemental memorandum in opposition to the motion, ECF No. 70. See Local Rule 7.4 (“Any opposition or reply that is untimely filed may be disregarded by the court or stricken from the record. No further or supplemental briefing shall be submitted without leave of court.”).
II. FACTUAL BACKGROUND.
Jinadasa, who is proceeding pro se, is a Web Architect at BYU Hawaii. See ECF No. 61, Page ID # 515. Jinadasa alleges that he is the “only African, black (dark skinned hue color) administrative staff” member at BYU Hawaii and that he is from Ethiopia, Africa. See id. ¶¶ 3, 10, PageID # 517, 519.
In his Fourth Amended Complaint, filed on November 12, 2015, Jinadasa asserts claims of (a) sex discrimination in violation of Title IX, 20 U.S.C. § 1981 (Counts I and III); (b) race discrimination in violation of 42 U.S.C. § 1981 (Counts I and III); (c) unlawful retaliation in violation of Title VII, 42 U.S.C. § 2000 (Count II); (d) race, color, and national origin discrimination in violation of Title VII, 42 U.S.C. § 2000 (Count IV); (e) violation of civil and constitutional rights (Count V); and (f) intentional infliction of emotional distress (Count VI).
The standard of review for a motion to dismiss was set forth in this court’s order of May 27, 2015. See 2015 WL 3407832, *1-*2. That standard is incorporated herein by reference.
A. The Court Declines to Dismiss the Fourth Amended Complaint As Untimely.
At the hearing on the Motion to Dismiss the Third Amended Complaint, the court gave Jinadasa leave to file a Fourth Amended Complaint provided the court received the document no later than November 10, 2015. BYU Hawaii asks this court to dismiss the Fourth Amended Complaint because Jinadasa did not file it until November 12, 2015, two days past the deadline. Although Jinadasa has not advanced any valid reason for having flouted court rules and court deadlines, the court declines BYU Hawaii’s invitation to rely on Jinadasa’s failure to file his Fourth Amended Complaint on time as a reason to dismiss this action. Under the circumstances of this case, dismissal appears to be a disproportionate sanction.
While declining to dismiss the Fourth Amended Complaint as untimely, the court stresses that Jinadasa must in the future follow court rules and deadlines to the letter or face adverse consequences, including but not limited to the dismissal of this action or the granting of motions.
B. Jinadasa Lacks Standing to Assert Claims on Behalf of Others.
As an initial matter, the court dismisses any claim Jinadasa may be asserting on behalf of others. This jurisdictional determination that Jinadasa lacks standing to assert claims of others is required by Article III, section 2, of the Constitution, which confines federal courts to deciding cases or controversies.
To qualify for adjudication by a federal court, a plaintiff must show that an actual controversy exists at all stages of the case. See Arizonans for Official English v. Arizona, 520 U.S. 43, 63 (1997). No case or controversy exists if a plaintiff lacks standing to make the claims asserted. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (stating that standing pertains to a federal court’s subject matter jurisdiction). To have standing to maintain a claim, Jinadasa must demonstrate: (1) an injury in fact--an invasion of a legally protected interest that is concrete and particularized, as well as actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct--an injury that is fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) a likelihood, not mere speculation, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
This court has already explained to Jinadasa that he may not assert claims belonging to others:
In his prayer for relief, Jinadasa requests that this court issue a permanent injunction “urging the defendants and Brigham Young University-Hawaii from employment practices or retaliations that discriminates against blacks, polynesians, women, and other non-caucasian minorities at the university.” ECF No. 29, PageID # 109. Jinadasa lacks standing to pursue such relief. See Patee v. Pac. Nw. Bell Tel. Co., 803 F.2d 476, 478-79 (9th Cir. 1986) (employees lack standing to bring Title VII suit based on discrimination against others); Sidari v. Orleans Cnty., 174 F.R.D. 275, 285 (W.D.N.Y. 1996) (striking plaintiff’s request for relief on behalf of “other persons similarly situated” based on lack of standing).
Jinadasa v. Brigham Young Univ.-Hawaii, 2015 WL 3407832, at *8 (D. Haw. May 27, 2015). The court therefore dismisses any claim that Jinadasa may be asserting on behalf of others.
Whether any such claim is being asserted is actually unclear. However, to the extent Jinadasa is attempting to assert claims on behalf of others, he may not do so. These claims might include, if asserted: (1) claims that Polynesians and other minorities were not selected for jobs or were “talked down” to (see Fourth Amended Complaint ¶¶ 12-13, 15, 36-37, ECF No. 61, PageID # 519-20, 526); (2) claims that Polynesians were demoted and kicked out of BYU Hawaii housing (see id. ¶ 14, PageID # 520); (3) claims that Polynesians are underrepresented at the management level, were terminated, or received less favorable termination packages (see id. ¶¶ 20, 29, 45, PageID # 521, 524, 527-28); (4) claims that a friend from the Philippines was being paid less than less-qualified Caucasian employees (see id. ¶ 22, PageID # 522); and (5) a prayer for relief in the form of the publishing of all job postings to ensure that “Polynesians, blacks, and other minorities” are not taken advantage, to the extent the prayer is seeking relief for others (see id., Prayer for Relief ¶ P, PageID # 538-39).
The court has attempted to discern whether Jinadasa is attempting to plead a class action. Given the total lack of even a rudimentary description of a class that includes both Jinadasa and others, as well as Jinadasa’s inability to act as counsel for the class, the court is not treating this as a class action.
C. The Fourth Amended Complaint Asserts a Viable Disparate Treatment Race Discrimination Claim, but The Statute of Limitations Has Run on Any Title VII Claim Arising Before December 9, 2010.
In the Fourth Amended Complaint, Jinadasa asserts that he suffered race discrimination in violation of 42 U.S.C. § 1981 (Counts I and III) and race, color, and national origin discrimination in violation of Title VII, 42 U.S.C. § 2000 (Count IV). At the hearing on BYU Hawaii’s motion to dismiss Jinadasa’s Third Amended Complaint, Jinadasa clarified that, although that complaint mentioned national origin and color discrimination, he was asserting only race discrimination claims. See ECF No. 63, PageID # 554. Notwithstanding this statement, at the hearing on the present motion, Jinadasa indicated that he wants to proceed with Title VII disparate treatment claims based on race and national origin, but not separately on color.
In relevant part, § 1981 prohibits race discrimination in the making and enforcement of contracts. Title VII similarly prohibits discrimination based on race, color, religion, sex, or national origin:
(a) It shall be an unlawful employment practice for an employer --
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2.
A prima facie case of disparate treatment requires a plaintiff to establish: (1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified; (3) the plaintiff suffered an adverse employment decision; and (4) employees outside the protected class with comparable qualifications and work records did not suffer similar adverse employment decisions. See, e.g., White v. Pac. Media Grp., Inc., 322 F.Supp.2d 1101, 1110 (D. Haw. 2004). A plaintiff must demonstrate that his or her situation is similar to that of employees who received more favorable treatment in all material respects. See Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006). However, “a plaintiff is not obligated to show disparate treatment of an identically situated employee.” McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001) (cited approvingly in Selig). Instead, “individuals are similarly situated when they have similar jobs and display similar conduct.” Hawn v. Exec. Jet Mgmt. Inc., 615 F.3d 1151, 1160 (9th Cir. 2010) (citing Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003) (finding employee not similarly situated if he “did not engage in problematic conduct of comparable seriousness” to Plaintiff’s conduct)).
The Supreme Court has held that Title VII’s prohibition on discrimination “not only covers ‘terms’ and ‘conditions’ in the narrow sense, but evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (quotation marks and citation omitted). The Ninth Circuit defines “adverse employment action” broadly. See Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 847 (9thCir. 2004). However, not every employment decision is an adverse employment action. For example, ostracism is not, by itself, enough to show an adverse employment decision. See Strother v. S. California Permanente Med. Grp., 79 F.3d 859, 869 (9th Cir. 1996). Instead, the Ninth Circuit has stated that adverse employment actions must materially affect the compensation, terms, conditions, or privileges of employment. See Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (quotation marks and citations omitted). Thus, assigning more or more burdensome work may be an adverse employment action. Id. Similarly, a reduction in pay, transfer of job duties, or undeserved performance ratings may also be an adverse employment action. See Fonseca, 374 F.3d at 847.
In the order of May 27, 2015, the court found that the Second Amended Complaint insufficiently asserted a Title VII disparate treatment claim based on contentions that BYU Hawaii had subjected Jinadasa to adverse employment actions by denying him: (1) equal compensation; (2)“advancement opportunities”; (3) “employee awards”; (4)“proper access to web server and tools”; (5) the opportunity to attend conferences on the U.S. mainland; (6) exclusion from meetings and “technical procedures”; (7) exclusion from office parties; and (8) lack of response to “technical requests and communications.”
The court ruled:
Jinadasa’s allegations that he was denied employee awards, denied proper access to a web server and unspecified “tools, ” excluded from office parties, and ignored in his “technical requests and communications” do not provide a sufficient basis for this court to infer that Jinadasa was subject to an adverse employment action. No allegations in the Second Amended Complaint suggest that those actions caused ...