United States District Court, W.D. Washington
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS; GRANTING DEFENDANTS'
MOTION TO STRIKE; GRANTING PLAINTIFF'S MOTION TO AMEND;
DENYING PLAINTIFF'S MOTION FOR POLYGRAPH
BARBARA J. ROTHSTEIN UNITED STATES DISTRICT JUDGE
se Plaintiff Setonji Nahum ("Nahum") brought
this employment discrimination action against Defendants The
Boeing Company ("Boeing") and one of its managers.
Compl., Dkt. No. 1. Presently before the Court are
Defendants' motion to dismiss and for other relief, and a
cross motion by Plaintiff to permit him to amend his
complaint. Additionally, Plaintiff moves the Court to require
the use of polygraphs for all proceedings. Having considered
the parties' submissions, the record of the case, and
relevant legal authorities, the Court orders as follows:
was hired by Boeing in February 2018 as a Manufacturing
Industrial Engineer in support of Boeing's 777X program
in Everett, Washington. Compl., Dkt. No. 1. On September 4,
2018, Nahum received a Corrective Action (CAM) purportedly
for failure to comply with management's expectations and
request that he perform certain work. Id. at 13-14.
On February 7, 2019, he was issued a second CAM for again
purportedly failing to comply with management directions and
expectations that he complete required tasks. Id. at
March 18, 2019, Nahum filed a complaint with the U.S. Equal
Employment Opportunity Commission ("EEOC"), case
number 551-2019-01088, claiming that Boeing discriminated
against him because of his race by: (1) treating him less
favorably than employees outside of his protected class; (2)
issuing him corrective actions in September 2018 and February
2019 for minor issues that he did not believe others were
written up for; (3) giving him an unfavorable mid-year
performance evaluation for having disputes with other
employees; and (4) reassigning him to another work area on
the basis that his co-workers were afraid to work with him.
Dkt. No. 21 at 4.
13, 2019, Boeing issued Nahum a third CAM for failing to
comply with management direction to complete required tasks.
Boeing fired him the same day. Id. at 17-18.
Nahum's request, the EEOC issued a Notice of Right to Sue
on May 30, 2019. Id. at 36. This closed the EEOC
filed a Complaint with seven Claims against Boeing and
Jeffrey Dillaman, a Boeing manager, on July 18, 2019. Dkt.
No. 1. The Complaint alleges that Defendants engaged in acts
of discrimination from February 16, 2018 until May 13, 2019.
Id. at 5.
Failure to State a Claim
12(b)(6) provides for dismissal of a complaint for
"failure to state a claim upon which relief can be
granted." Fed.R.Civ.P. 12(b)(6). While "detailed
factual allegations" are not required, a complaint must
include "more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In
other words, a complaint must have sufficient factual
allegations to "state a claim to relief that is
plausible on its face." Id. (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
claim is facially plausible "when the pleaded factual
content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged." Id. Under Rule 12(b)(6), dismissal
can be granted based on "the lack of a cognizable legal
theory or the absence of sufficient facts alleged under a
cognizable legal theory." Balistreri v. Pacifica
Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
considering a motion to dismiss under Rule 12(b)(6), the
court construes the complaint in the light most favorable to
the nonmoving party. Livid Holdings Ltd. v. Salomon Smith
Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005). The
Court must accept all well-pleaded facts as true and draw all
reasonable inferences in a plaintiffs favor. Wyler Summit
P'ship v. Turner Broad. Sys., Inc., 135 F.3d 658,
661 (9th Cir. 1998). The Court also liberally construes a
complaint filed by a pro se litigant such as
Plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) ("A document filed pro se is to be
liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.") (internal
quotation marks and citations omitted). However,
"pro se litigants in the ordinary civil case
should not be treated more favorably than parties with
attorneys of record," Jacobsen v. Filler, 790
F.2d 1362, 1364 (9th Cir. 1986), and the court cannot supply
essential facts that the pro se plaintiff has failed
to plead, Pena v. Gardner, 976 F.2d 469, 471 (9th
Leave to Amend
dismissing a case for failure to state a claim, the district
court "should grant leave to amend ... unless [the
court] determines that the pleading could not possibly be
cured by the allegation of other facts." Lopez v.
Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting
Doe v. United States, 58 F.3d 494, 497 (9th
Cir. 1995)) (internal quotation marks omitted). A court may
freely grant leave to amend a complaint "when justice so
requires." Fed.R.Civ.P. 15(a). The Ninth Circuit
recognizes that the purpose of this provision of Rule 15(a)
is "to facilitate decisions on the merits, rather than
on the pleadings or technicalities." Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
amendment of the complaint would be futile, the court need
not permit leave to amend even under the liberal construction
of pro se pleadings. Lopez, 203 F.3d at
1128; Nunes v. Ashcroft, 375 F.3d 810, 813 (9th Cir.
2004). Thus, if there is a clear legal or factual bar to a
plaintiffs claims that cannot be overcome by the allegation
of additional facts, leave to amend need not be granted.