1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAIMI SHOAGA, No. 2:21-cv-01953 DAD CKD PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 CALIFORNIA HEALTH CARE

MEDICAL FACILITY,

15 Defendant. 16

17 18 In this fee-paid action, plaintiff Shoaga, proceeding pro se, asserts a Title VII failure to 19 promote claim against defendant California Healthcare Medical Facility (CHMF).1 After his first 20 two amended complaints were dismissed2, plaintiff’s Third Amended Complaint is now before 21 the court. (ECF No. 35, TAC.) Defendant has moved to dismiss the TAC, and the motion is fully 22 briefed and submitted on the papers. (ECF Nos. 36, 38, 40, 41 & 42.) For the reasons set forth 23 below, the undersigned will recommend that defendant’s motion be granted. 24 //// 25

1 On January 25, 2023, codefendant Andrew Nelson III was dismissed from this action. (ECF 26 No. 34.) 27 2 Plaintiff filed a First Amended Complaint shortly after his original complaint, superseding it, 28 such that the FAC was the first pleading served in this action. (ECF Nos. 1, 3 & 8.) 1 I. The Third Amended Complaint 2 In the complaint before the court, plaintiff asserts that he was subject to employment 3 discrimination “on the basis of age and national origin[.]” (TAC, ¶ 1.) He alleges as follows: 4 Plaintiff has worked as a radiologic technologist at CHMF since 2016 and has over twenty 5 years’ experience as a radiographer, including hospital and clinic experience prior to joining 6 CHMF in 2016. (Id., ¶ 7.) In 2017, after the senior radiologic technologist resigned, radiology 7 manager Andrew Nelson “chose a replacement for the job who does not meet the qualification of 8 [Senior] Rad Tech, [was] not a state employee at the time, . . . [and] has no Fluoroscopy License 9 which is a prerequisite for the job.” (Id., ¶¶ 8, 10.) The job opening was not posted in the jobs 10 bulletin or institutional email as required, and there was no selection process. (Id., 9.) 11 There was no other basis for this hiring other than to unjustifiably replace the Plaintiff for no other reason than his age and national 12 origin as there was no legitimate purpose for this hiring in any manner whatsoever based on the totality of the facts and 13 circumstances of this case thereby establishing a prima facie case of discrimination. 14 15 (Id., ¶ 11.) 16 Plaintiff “was the only state radiologic technician at CHMF during this period.” (Id., ¶ 17 12.) Plaintiff characterizes the “hiring of a less qualified worker” as unexplained, malicious, 18 unfair, and insulting. (Id., ¶ 12.) He alleges that CHMF “filled his sought-after job position three 19 times (i.e., the CMCF failed to promote him more than once).” (Id., ¶ 18.) He seeks injunctive 20 relief in the form of “restoration of Plaintiff’s position and the Defendant to desist from further 21 unequal treatment.” (Id. at 8.) 22 II. Motion to Dismiss 23 In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a 24 complaint must contain more than a “formulaic recitation of the elements of a cause of action”; it 25 must contain factual allegations sufficient to “raise a right to relief above the speculative level.” 26 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). “The pleading must contain something 27 more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable 28 right of action.” Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 1 235-236 (3d ed. 2004). “[A] complaint must contain sufficient factual matter, accepted as true, to 2 ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 3 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads 4 factual content that allows the court to draw the reasonable inference that the defendant is liable 5 for the misconduct alleged.” Id. 6 III. Failure to Promote 7 On January 25, 2023, all plaintiff’s claims in the Second Amended Complaint (SAC) were 8 dismissed without leave to amend except his failure to promote claim, which was dismissed with 9 leave to amend. (ECF No. 34 at 3.) In that order, the district judge explained that “plaintiff will 10 be granted one final opportunity to amend his complaint to allege a failure to promote claim 11 against defendant CHMF/CDCR.” (Id.) 12 In order to make prima facie case for a Title VII failure to promote claim, a plaintiff must 13 show that (1) he belongs to a protected class; (2) he applied for and was qualified for the position 14 he was denied; (3) he was rejected despite his qualifications; and (4) the employer filled the 15 position with an employee not of plaintiff’s class, or continued to consider other applicants whose 16 qualifications were comparable to plaintiff’s after rejecting plaintiff. Henry v. McDonough, 2021 17 WL 6052409, **8-9 (D. Hawai’i Dec. 21, 2012), citing Dominguez-Curry v. Nevada Transp. 18 Dept., 424 F.3d 1027, 1037 (9th Cir. 2005). 19 Here, plaintiff asserts that he was subject to discrimination “on the basis of age and 20 national origin[.]”3 (TAC, ¶ 1.) Although the TAC alleges in conclusory fashion that plaintiff is 21 a member of a protected class on the basis of national origin, the complaint does not identify his 22 national origin, nor does it allege that the person hired as Senior Radiologic Technician in 2017 23 was of a different national origin than plaintiff. Thus, plaintiff does not allege facts showing that 24 he belonged to a protected class, nor that the employer filled the position with an employee not of

25 3 In its order dismissing the FAC, the court explained that plaintiff’s age discrimination claim against CDCR was not cognizable because individuals cannot bring actions under the ADEA 26 against states that have not waived sovereign immunity. Stilwell v. City of Williams, 831 F.3d 27 1234, 1245 (9th Cir. 2016), citing Ahlmeyer, 555 F.3d at 1060. (ECF No. 18 at 3.)

28 1 plaintiff’s class. See Ng v. Paulson, No. CV 09-3954-AG, 2009 WL 8587896, at *3 (C.D. Cal. 2 Sept. 15, 2009) (dismissing Title VII complaint where plaintiff “fails to establish that he is a 3 member of a protected class. Specifically, Plaintiff's Complaint contains no factual allegations of 4 Plaintiff’s purported disability. And the Complaint contains no facts to suggest that any of the 5 alleged conduct is related to Plaintiff’s purported disability.”). 6 The TAC also fails to allege that plaintiff “applied for” the position of Senior Radiologic 7 Technician on any of three alleged occasions that defendant failed to promote him. The only 8 details about the hiring process concern the 2017 incident, where the job opening was allegedly 9 “not posted in the job bulletin or institutional email.” Plaintiff does not allege that he “applied 10 for” the job at any time during the alleged period of discrimination (from 2017 to an unspecified 11 date), nor that any such application was rejected “despite his qualifications.” Rather, the TAC 12 recounts plaintiff’s observation that a less-qualified person was hired for a job he wanted in 2017, 13 and possibly two times afterwards. The mere wish to be considered for a job that ultimately goes 14 to someone else is not sufficient for a failure-to-promote claim. 15 Finally, plaintiff’s conclusory assertion that “[t]here was no other basis for [the 2017] 16 hiring other than to unjustifiably replace the Plaintiff for no other reason than his age and national 17 origin as there was no legitimate purpose for this hiring” does not “contain sufficient factual 18 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft, 556 19 U.S. at 678 (2009). In short, the TAC fails to state a cognizable claim. Despite two opportunities 20 to cure the deficiencies in his complaint, plaintiff has failed to do so, and it appears that further 21 amendment would be futile. Thus the undersigned will recommend dismissal of this action. 22 IV. Exhaustion of Remedies 23 In the August 16, 2022, findings and recommendations, the undersigned explained that, 24 before filing a Title VII claim in federal court, a plaintiff must first pursue available 25 administrative remedies and file a timely complaint with the EEOC. Deravin v. Kerik, 335 F.3d 26 195, 200 (2nd Cir. 2003). Pursuant to 42 U.S.C. § 2000e-5(e)(1), a Title VII plaintiff must file a 27 charge with the EEOC within 300 days “after the alleged unlawful employment practice 28 occurred” if it occurred in a State that has an entity with the authority to grant or seek relief with 1 respect to the alleged unlawful practice and the employee initially filed a grievance with that 2 agency. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002). A claim is time- 3 barred if it is not filed within this time limit. Id. Where a claim is based on discrete acts, “[a] 4 discrete retaliatory or discriminatory act ‘occurred’ on the day that it ‘happened[ ]’” and 5 therefore, a party “must file a charge within . . . 300 days of the date of the act or lose the ability 6 to recover for it.” Id. at 110. 7 From materials submitted in connection with the SAC, it was unclear whether plaintiff 8 had filed an EEOC charge within 300 days of the 2017 event in which defendant allegedly 9 discriminated against him. Accordingly, in his order granting leave to file a TAC, the district 10 judge instructed plaintiff to “attach all related EEOC paperwork, including the charge itself, and 11 explain why he filed the EEOC charge when he did.” (ECF No. 34 at 3.) 12 Here as before, plaintiff attaches materials related to an unspecified 2020 EEOC charge, 13 including an August 3, 2021, right-to-sue letter. (ECF No. 35 at 9.) However, it is not clear how 14 this EEOC charge relates to the alleged 2017 incident—the only failure-to-promote scenario 15 described in any detail in the TAC. Plaintiff did not follow the court’s instructions, nor has he 16 provided any evidence that he filed an EEOC charge about the 2017 incident within 300 days, 17 such that his claim is not time-barred. For this additional reason, the TAC should be dismissed 18 without leave to amend. 19 Accordingly, IT IS HEREBY RECOMMENDED THAT: 20 1. Defendant’s motion to dismiss (ECF No. 36) be granted; 21 2. The Third Amended Complaint be dismissed for failure to state a claim; and 22 3. The Clerk of Court be directed to close this case. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 25 after being served with these findings and recommendations, any party may file written 26 objections with the court and serve a copy on all parties. Such a document should be captioned 27 “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 28 //// 1 | failure to file objections within the specified time may waive the right to appeal the District 2 | Court’s order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 3 | Dated: May 23, 2023 aie A / ap 4 4 CAROLYNK. DELANEY 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 2 / shoagal953.mtd_TAC 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28