Opinion
CV-22-269-TUC-JAS (AMM)
09-07-2023
Angelica M Loreto, Plaintiff, v. Arizona Board of Regents, et al., Defendants.
REPORT AND RECOMMENDATION
Honorable Angela M. Martinez, United States Magistrate Judge
On February 2, 2023, Defendants Arizona Board of Regents (“ABOR”) and Denise Moynihan filed a Motion to Dismiss for failure to state a claim. (Doc. 26.) The matter was referred to Magistrate Judge D. Thomas Ferraro for all pretrial proceedings and a Report and Recommendation. (Doc. 7.) The matter has since been reassigned to Magistrate Judge Martinez and is fully briefed. (Docs. 26, 27, 28, 29.) As set forth herein, the Magistrate Judge recommends that the District Court, after its independent review of the record, grant Defendants' Motion to Dismiss in part and dismiss the First Amended Complaint (“FAC”) as to Plaintiff's first, third, fourth, and fifth causes of action. Defendants' Motion to Dismiss should be denied as to Plaintiff's second cause of action, Reprisal, but in proceeding with this claim, Plaintiff may only challenge Defendants' retaliatory act of “contesting [Plaintiff's] application for unemployment compensation” because this is the only retaliatory act that is not time-barred. (See Doc. 21 ¶ 44.) .... ....
BACKGROUND
Plaintiff is an employee of the University of Arizona (“Uof A”). In 2015, Plaintiff began working as an accounting assistant in the business department under the supervision of Defendant Moynihan. (Doc. 21 ¶ 7.) Moynihan enforced a restroom break pre-approval policy for the accounting assistant position, reportedly to ensure that the walk-up account window remained staffed. (Id. ¶ 8.) In March of 2020, in-person services ceased due to the Covid-19 pandemic, but the restroom pre-approval policy remained in effect. (Id. ¶ 10-11.)
UofA is a federal contractor that receives federal grants. (Doc. 21 ¶ 1, 3.) ABOR is the proper defendant when suit is brought against UofA. (Doc. 26 at 1 n.1.)
In February of 2021, Plaintiff underwent tummy tuck surgery and experienced postsurgery symptoms of “severe incontinence and persistent involuntary lymphatic fluid pubic drainage.” (Id. ¶ 12.) Plaintiff informed Defendant Moynihan of her surgery and postsurgery symptoms, and Plaintiff requested temporary exemption from the restroom preapproval policy and permission to take short walks. (Id. ¶ 13.) Defendant Moynihan denied both requests, and Plaintiff asserts that while Defendant Moynihan promised to provide prompt approval of restroom breaks, Defendant Moynihan “actively obstructed and delayed approval.” (Id. ¶ 15.) In turn, Plaintiff regularly urinated and discharged lymphatic fluid into a post-surgical undergarment. (Id. ¶ 16.)
Plaintiff alleges that she communicated her concerns regarding the pre-approval restroom policy to Defendant Moynihan's supervisor, Richard Bergeron, and to Human Resource Specialist Kevin L. Mack. (Id. ¶ 21.) On April 30, 2021, Plaintiff resigned and applied for unemployment compensation. (Id. ¶ 27.) At Plaintiff's unemployment compensation hearing on September 24, 2021, Defendant Moynihan and Bergeron testified that there had been no pre-approval restroom policy and that Plaintiff had never requested an accommodation. (Id. ¶¶ 31-32.) On September 25, 2021, the Appeal Tribunal denied Plaintiff unemployment benefits, finding that she quit her employment without good cause. (Doc. 26 at 20-27, 34.) The Appeals Board affirmed the decision on March 18, 2022, and the Arizona Court of Appeals affirmed the Appeals Board on May 23, 2022. (Doc. 26 at 36, 41-42.) In November of 2021, Plaintiff was rehired as an accountant with the Uof A's Bursar's Office. (Doc. 21 ¶ 33.)
The FAC lists the date of the hearing as September 26, 2021; however, the Arizona Department of Economic Security (ADES) records indicate the hearing took place on September 24, 2021. (Doc. 26 at 28.)
On May 2, 2022, Plaintiff filed a Complaint in Pima County Superior Court alleging violations of the Americans with Disabilities Act, the Rehabilitation Act, the Arizona Civil Rights Act, the Arizona Employment Protection Act, 42 U.S.C. §§ 1981a & 1983, and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). (Doc. 1-5 at 6-8.) The action was removed to federal court on June 8, 2022. (Doc. 1.) On December 2, 2022, the District Court granted Defendants' Motion to Dismiss and permitted Plaintiff to file a FAC. (Doc. 20.) The FAC supersedes the original Complaint, which is treated as nonexistent. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9thCir. 1992). Defendants move to dismiss the FAC for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). (Doc. 26 at 1:15-17.)
APPLICABLE LAW
To survive a 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.'" Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). A complaint must have sufficient factual content such that a court can draw the "reasonable inference" that the defendant is liable for the alleged misconduct; this requires "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678." On a motion to dismiss, “all well-pleaded allegations of material fact are taken as true and construed in a light most favorable to the non-moving party." Wyler Summit P'ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998). Further, all reasonable inferences are drawn in favor of the nonmoving party. See Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005). However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to state a claim. Iqbal, 556 U.S. at 678.
DISCUSSION
I. Count One: Plaintiff's ADA Claim is Time-Barred and Should be Dismissed.
In Count One, Plaintiff alleges disability discrimination under Title I of the Americans with Disability Act, § 504 of the Rehabilitation Act, and the Arizona Civil Rights Act. (Doc. 21 ¶ 39.) Plaintiff alleges Defendant Uof A discriminated against her by denying the reasonable accommodation of a temporary exemption from the restroom preapproval policy and prompt approval of restroom breaks and by constructively discharging her. (Id. ¶¶ 40-41.)
Defendants request that the Court take judicial notice of the contents of three public record administrative and judicial decisions denying Plaintiff's unemployment insurance benefits claim. (Doc. 26 at 6:1-5.) For example, Defendants request that judicial notice be taken of the ADES tribunal findings that Plaintiff “did not inform employer that she was suffering from bladder issues because of her surgery” and “did not seek accommodations regarding the bathroom issue because she assumed that employer would not do anything about it.” (See doc. 26-1 at 5-8.) The FAC alleges, however, that Plaintiff “informed [Defendant] about her surgery and the incontinence and lymphatic discharge.” (Doc. 21 ¶ 13.) The Court may take judicial notice of a fact “that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201. “[T]he Court may take judicial notice of government documents to prove their existence and contents, but not for the truth of the matters asserted therein when the facts are disputed.” Friends of the Clearwater v. Higgins, 523 F.Supp.3d 1213, 1222 (D. Idaho 2021). The parties dispute whether Plaintiff informed Defendants of her medical conditions, as well as other facts that may be material to resolution of this matter. Whether Plaintiff informed Defendants of her medical conditions is a fact properly resolved through the adversarial process of litigation. Thus, the Court may take judicial notice of the existence and contents of the underlying administrative decisions and records, but not of the truth of the factual findings therein.
A timely charge of discrimination “requires that a complainant file a charge with the EEOC within 180 days of the last act of alleged discrimination, unless the complainant initially institutes proceedings with a state or local agency, in which case the EEOC charge must be filed within 300 days.” Santa Maria v. Pac. Bell, 202 F.3d 1170, 1176 (9th Cir. 2000). Here, the FAC alleges two discrete actions of disability discrimination: (1) denial of the accommodation of an exemption from the pre-approval restroom policy and (2) constructive discharge. (Doc. 21 ¶¶ 39-41.) Both actions ceased upon Plaintiff's resignation on April 30, 2021, and Plaintiff did not file a charge with the EEOC until May 28, 2022. (Doc. 11-1.) As such, because Plaintiff did not file within 300 days, the disability discrimination claim is time-barred. Moreover, Plaintiff fails to allege facts to support an equitable defense for her untimeliness such as equitable estoppel or tolling. See Santa Maria, 202 F.3d at 1176 (explaining that equitable estoppel occurs when a defendant acts to “prevent[ ] a plaintiff from filing suit,” and equitable tolling occurs where a plaintiff has “excusable ignorance of the limitations period and [a] lack of prejudice to the defendant.”) Thus, Count One is time-barred and should be dismissed.
II. Count Two: Plaintiff's Three-Part Reprisal Claim Should Be Partially Dismissed as Time-Barred.
In Count Two, Plaintiff asserts that Uof A retaliated against her by (1) obstructing and delaying restroom breaks, (2) constructively discharging her, and (3) contesting her application for unemployment compensation. (Doc. 21 ¶¶ 42-44.)
Upon review, Plaintiff's reprisal claims for obstructing her restroom breaks and constructive discharge are time-barred and should be dismissed. The Ninth Circuit applies the Title VII retaliation standard to ADA retaliation claims. See T.B. ex rel. Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 472-73 (9th Cir. 2015) (“We apply the Title VII burden-shifting framework . . . to retaliation claims under the ADA.”). As such, a reprisal claim brought under Title VII or the ADA must comply with the EEOC timely filing requirements. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002) (“[A] Title VII plaintiff [must] file a charge with the . . . (EEOC) either 180 or 300 days ‘after the alleged unlawful employment practice occurred.'”); Chen v. Salt River Project, No. CV-21-00744-PHX-SMB, 2021 WL 5988595, at *4 (D. Ariz. Dec. 17, 2021) (“To bring a claim for . . . retaliation under the ADA, Plaintiff must have first filed a charge with the EEOC . . . within 300 days after the alleged . . . retaliatory events.”). In this case, the retaliatory act of obstructing and delaying approval of Plaintiff's restroom breaks ceased upon Plaintiff's resignation on April 30, 2021. (Doc. 21 ¶ 27.) Plaintiff's alleged effective “constructive discharge” occurred on that same date. Plaintiff did not file an EEOC charge until May 28, 2022-more than 300 days later. (See Doc. 11-1.) Thus, Plaintiff's reprisal claims for obstructing her restroom breaks and for constructive discharge are time-barred.
Plaintiff does not allege an equitable defense to untimeliness such as equitable estoppel or tolling.
The remaining component of Plaintiff's reprisal claim is not time-barred and withstands Rule 12(b)(6) analysis. As an initial matter, Plaintiff's claim is timely as she asserts that the retaliatory act of contesting her unemployment compensation application continues to the present date. (Doc. 21 ¶ 34.) An employer may be sued for its allegedly retaliatory postemployment actions. Robinson v. Shell Oil Co., 519 U.S. 337, 342 (1997) (“Title VII's definition of ‘employee' likewise lacks any temporal qualifier and is consistent with either current or past employment.”). Thus, the claim based on the alleged retaliatory act of contesting Plaintiff's application for unemployment compensation is not time-barred because Plaintiff filed her EEOC charge within 300 days of this allegedly ongoing unlawful employment practice.
Plaintiff successfully asserts a prima facie reprisal claim by alleging that Uof A contested her application for unemployment compensation. (Doc. 21 ¶¶ 29, 34, 44.) To prevail on a Title VII retaliation claim, a plaintiff must make out a prima facie case: “(a) that he or she was engaged in protected activity, (b) that he or she suffered an adverse action, and (c) that there was a causal link between the two.” Id. at 473; see also Emeldi v. Univ. of Oregon, 698 F.3d 715, 724 (9th Cir. 2012).
Here, Plaintiff's protected activity was “requesting a reasonable accommodation.” (Doc. 21 ¶¶ 42-43.) Even when a plaintiff is not disabled under the Rehabilitation Act, requesting a reasonable accommodation is a protected activity. Coons v. Sec'y of U.S. Dep't of Treasury, 383 F.3d 879, 887 (9th Cir. 2004). Thus, Plaintiff was engaged in a protected activity when she requested a reasonable accommodation by way of a temporary exemption from the restroom pre-approval policy and permission to take short walks. (See doc. 21 at ¶¶ 12-16).
An adverse action occurs when the employee is subjected to “adverse treatment that is reasonably likely to deter employees from engaging in protected activity.” Ray v. Henderson, 217 F.3d 1234, 1237-39 (9th Cir. 2000) (holding that a lockdown procedure that “turned a process that had taken seconds into one taking several minutes” was an adverse action). Courts have held that an employer frivolously challenging an employee's unemployment compensation award constitutes an adverse action. See Ward v. Wal-Mart Stores, Inc., 140 F.Supp.2d 1220, 1230 (D.N.M. 2001) (“[I]f Wal-Mart's appeal of Ward's unemployment compensation award is found to be frivolous, Wal-Mart has subjected Ward to an adverse employment action.”). Thus, contesting Plaintiff's unemployment compensation application may constitute an adverse action.
A causal connection can be inferred from the “proximity in time between the protected action and the allegedly retaliatory employment decision.” Ray, 217 F.3d at 1244 (citing Yartzoff v. Thomas, 809 F.2d 1371 (9th Cir. 1987)); see also Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1068 (9th Cir. 2002) (adverse action occurring ten months after protected activity did not establish causation). Plaintiff requested a reasonable accommodation around February 2021, and Uof A contested Plaintiff's unemployment compensation application shortly after her resignation on April 30, 2021. (Doc. 21 ¶¶ 1213, 15, 27-29.) The proximity between Plaintiff's protected activity and Uof A contesting the unemployment compensation application is sufficient to make a prima facie showing of the third element. Where all three elements have been satisfied, Plaintiff has stated a prima facie case for retaliation. Accordingly, the Court recommends that the reprisal claim proceed with respect to the alleged retaliatory act of contesting Plaintiff's application for employment compensation.
III. Count Three: Plaintiff's Hostile Work Environment Claim Should be Dismissed for Failure to State a Claim.
In Count Three, Plaintiff asserts a hostile work environment claim, alleging that Uof A: (1) enforced the pre-approval restroom policy during the Covid-19 pandemic; (2) denied Plaintiff's request for exemption from the policy; (3) obstructed and delayed Plaintiff's restroom breaks; (4) contested Plaintiff's application for unemployment compensation (5) falsely testified that there was no pre-approval restroom policy or obstruction of restroom breaks; and (6) continued to litigate Plaintiff's unemployment compensation claim and bill Plaintiff for its attorneys' fees. (Doc. 21 ¶¶ 45-46.) As discussed above, the only components of this claim that are not time-barred are those that occurred after the termination of Plaintiff's employment. Plaintiff's claim that Uof A continued to litigate her unemployment compensation and bill for attorneys' fees does not provide a basis for a hostile work environment claim as a matter of law.
“[E]very iteration of the elements of a hostile work environment claim has required an existing employer-employee relationship and a showing that the harassment substantively affected the plaintiff's working conditions.” Ruggerio v. Dynamic Elec. Sys. Inc., 2012 WL 3043102, at *8 (E.D.N.Y. July 25, 2012). Hostile work environment claims are premised upon Title VII's provisions prohibiting an employer from discriminating against an employee with respect to any conditions of his employment. Id.; see 42 U.S.C. § 2000e-2(a). The statute limits the scope of hostile work environment claims to “actions that affect employment or alter the conditions of the workplace.” Id. (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 54 (2006)); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986) (“Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult.”). As the only components of the hostile work environment claim that are not time-barred are unrelated to Plaintiff's conditions of employment and only began after her employment terminated, Plaintiff fails to state a hostile work environment claim. Count Three should be dismissed.
IV. Count Four: Plaintiff's § 1983 Claim Should be Dismissed as Partially Time-Barred and for Failure to State a Claim.
Plaintiff asserts a claim against Defendant Moynihan under 42 U.S.C. § 1983, alleging that Moynihan is liable in her personal and official capacities for obstructing restroom breaks, creating a hostile work environment, and constructively discharging Plaintiff. (Doc. 21 ¶ 47.)
The Ninth Circuit has held that a plaintiff “cannot state a § 1983 claim predicated on violations of Title I of the ADA.” Okwu v. McKim, 682 F.3d 841, 846 (9th Cir. 2012) (explaining that Congress intended to foreclose a § 1983 remedy for ADA violations); see also Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002). Thus, Plaintiff cannot assert a § 1983 claim predicated on disability discrimination. Moreover, as discussed above, Plaintiff fails to state a hostile work environment claim and any claim based on the alleged obstruction or delay of restroom breaks is time-barred. As such, Section 1983 does not enable her to pursue relief on those claims.
Defendant Moynihan likely also has qualified immunity from a Section 1983 claim because Plaintiff has not pled facts establishing that Defendant Moynihan's conduct "violate[d] clearly established statutory or constitutional rights.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Plaintiff argues that Defendant Moynihan is “not entitled to qualified immunity” under Ariz. Rev. Stat. Ann. § 12-820.02A. (Doc. 27 ¶ 14.) However, § 12-820.02A refers to a public entity or employee's liability under an enumerated list of circumstances, none of which apply here. See § 12-820.02A(1)-(11).
V. Count Five: Plaintiff's Claim for Intentional Infliction of Emotional Distress (“IIED”) Should be Dismissed for Failure to State a Claim.
Plaintiff asserts that Defendants Moynihan and Uof A engaged in extreme and outrageous conduct that caused severe emotional distress. (Doc. 21 ¶¶ 17, 24, 48-50.) To recover on an IIED claim, a plaintiff must show that a defendant's conduct was “extreme and outrageous,” that the defendant intended to cause emotional distress or “recklessly disregarded] the near certainty that such distress will result,” and that “severe emotional distress [did] indeed occur as a result of defendant's conduct.” Johnson v. McDonald, 197 Ariz. 155, 160, 3 P.3d 1075, 1080 (Ct. App. 1999) (citing Ford v. Revlon, Inc., 153 Ariz. 38, 43, 734 P.2d 580, 585 (1987)). A plaintiff must show that the defendant's conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” Id.
Plaintiff fails to state a prima facie cause of action for IIED. Plaintiff simply asserts that she experienced severe emotional distress because of Defendant's actions. (Doc. 21 ¶ 24.) Regardless of the plausibility of this assertion, “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to state a claim. Iqbal, 556 U.S. at 678. Plaintiff fails to include substantive allegations or information supporting her assertions. Rather, she merely recites the elements of an IIED cause of action and makes a conclusory statement in support of those elements, which is insufficient to state a claim. Id. However, because Plaintiff could potentially state an IIED claim were she to develop the factual allegations underlying it, the Court recommends that this claim be dismissed without prejudice and that Plaintiff be given an opportunity to amend it.
RECOMMENDATION
For the reasons stated above, the Magistrate Judge recommends that the District Judge enter an Order granting Defendants' Motion to Dismiss in part and dismissing the FAC as to Plaintiff's first, third, fourth, and fifth causes of action. To the extent the claims are time-barred, dismissal should be with prejudice. See Del Toro v. 360 P'ship LP, 2021 WL 5050057, at *1 (C.D. Cal. Nov. 1, 2021). The Motion to Dismiss should be denied as to the second cause of action, Reprisal, but in proceeding with this claim, Plaintiff may only challenge the alleged retaliatory act of contesting Plaintiff's application for unemployment compensation.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections. Objections shall be filed on or before September 15, 2023, and responses shall be filed on or before September 20, 2023. No reply briefs shall be filed unless leave is granted by the District Court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-22-269-TUC-JAS.