Brown v. Litchfield Elementary School District No. 79

Filing 16

ORDER granting 4 Defendant's Motion to Dismiss. Plaintiff shall have 30 days from the date of this Order to file an amended complaint with respect to her claims. If an amended complaint is not timely filed on this claim by August 22, 2011, it will be terminated consistent with this Order. The Clerk to terminate this matter after August 22, 2011 if Plaintiff fails to comply. Signed by Judge G Murray Snow on 7/22/11.(LSP)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 ) ) ) Plaintiff, ) ) vs. ) ) Litchfield Elementary School District No.) ) 79, ) ) Defendant. ) ) Margaret J. Brown, No. CV-10-2808-PHX-GMS ORDER 16 17 Pending before the Court is a Motion to Dismiss (Doc. 4) filed by Defendant 18 Litchfield Elementary School District No. 79. For the following reasons, the Court grants the 19 Motion to Dismiss, with leave to amend. 20 BACKGROUND 21 Plaintiff alleges claims for age discrimination, race discrimination, and wrongful 22 termination arising from her termination as a Site Leader from Litchfield Elementary School 23 District on September 3, 2010. (Doc. 1). The only reason Plaintiff was allegedly given for 24 her termination was that she was overheard speaking the name of her direct supervisor and 25 Program Director, Megan Duplain, in a private conversation with a teacher’s aide. (Doc. 1 26 at 9). Plaintiff appears to assert that the Director’s reasoning for Plaintiff’s termination was 27 merely pretext and that Plaintiff’s supervisor, Brittany Fluesche, repeatedly discriminated 28 against her because of her age. (Id. at 10). Plaintiff alleges that Fluesche then convinced 1 Duplain to terminate her based on an excuse. (Id.). Moreover, Plaintiff, an African American, 2 contends that her wrongful termination was also motivated by racial animus. Plaintiff had not 3 been written up prior to her termination and allegedly received the highest rating available 4 during her most recent performance review. (Id.). 5 Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity 6 Commission (“EEOC”) on September 27, 2010, alleging that Defendant discriminated 7 against her because of her race in violation of Title VII of the Civil Rights Act, and because 8 of her age pursuant to the Age Discrimination in Employment Act (“ADEA”). Plaintiff filed 9 her Complaint in the instant action on December 30, 2010. Defendant now moves to dismiss 10 all of Plaintiff’s claims pursuant to Federal Rules of Civil Procedure 8 and 12(b)(6). 11 12 DISCUSSION I. Legal Standard 13 To state a claim under Rule 8 and to survive dismissal under Rule 12(b)(6), a 14 complaint must contain more than “labels and conclusions” or a “formulaic recitation of the 15 elements of a cause of action”; it must contain factual allegations sufficient to “raise a right 16 to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 17 While “a complaint need not contain detailed factual allegations . . . it must plead ‘enough 18 facts to state a claim to relief that is plausible on its face.’” Clemens v. DaimlerChrysler 19 Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Twombly, 550 U.S. at 570). The 20 plausibility standard “asks for more than a sheer possibility that a defendant has acted 21 unlawfully. Where a complaint pleads facts that are merely consistent with a defendant’s 22 liability, it stops short of the line between possibility and plausibility of entitlement to relief.” 23 Id. (quoting Twombly, 550 U.S. at 555) (internal citations and quotation marks omitted). 24 When analyzing a complaint for failure to state a claim under Rule 12(b)(6), “[a]ll 25 allegations of material fact are taken as true and construed in the light most favorable to the 26 nonmoving party.” Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). However, legal 27 conclusions couched as factual allegations are not given a presumption of truthfulness, and 28 “conclusory allegations of law and unwarranted inferences are not sufficient to defeat a -2- 1 motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). 2 The Court must construe the complaint liberally since Plaintiff is proceeding pro se. 3 See Hughes v. Rowe, 449 U.S. 5, 9 (1980) (“It is settled law that the allegations of [a pro se 4 plaintiff’s] complaint, ‘however inartfully pleaded’ are held ‘to less stringent standards than 5 formal pleadings drafted by lawyers.’”) (citations omitted); Eldridge v. Block, 832 F.2d 1132, 6 1137 (9th Cir. 1987) (“The Supreme Court has instructed federal courts to liberally construe 7 the ‘inartful pleading’ of pro se litigants.”) (citation omitted); Ashelman v. Pope, 793 F.2d 8 1072, 1078 (9th Cir. 1986) (“[W]e hold [plaintiff’s] pro se pleadings to a less stringent 9 standard than formal pleadings prepared by lawyers.”). 10 II. Analysis 11 A. 12 The ADEA makes it unlawful for an employer “to discharge any individual or 13 otherwise discriminate against any individual with respect to his compensation, terms, 14 conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 15 623(a)(1). In the absence of direct evidence of age discrimination, Plaintiff can rely on the 16 burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 17 Under this approach, Plaintiff must first establish a prima facie case of age discrimination by 18 showing that (1) she was a member of the protected class (at least age 40), (2) performed her 19 job satisfactorily, (3) was subjected to an adverse employment action, and (4) employees who 20 were both substantially younger and similarly situated were treated more favorably. See Diaz 21 v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207–08 (9th Cir. 2008); see also Coleman v. 22 Quaker Oats Co., 232 F.3d 1271, 1280–81 (9th Cir. 2000) (discussing elements in the 23 context of termination). Age Discrimination 24 Plaintiff has asserted sufficient facts to support the first three elements of an ADEA 25 claim. While Plaintiff fails to indicate her age in the Complaint, her EEOC Charge (attached 26 to the Complaint) provides that her date of birth is January 13, 1965, suggesting that at the 27 28 -3- 1 time of her termination she was 45 years old, and therefore a member of the protected class.1 2 Plaintiff also alleges sufficient facts to show that she performed her job satisfactorily. She 3 conveys that she has “never been written-up” and that she “was marked straight 5’s (highest 4 marks allowed)” during her May 2010 appraisal. (Doc. 1 at 10). With respect to the third 5 element of her prima facie case, Plaintiff adequately alleges that she was subject to an 6 adverse employment action by stating that the Program Director terminated her employment 7 on September 3, 2010. (Id. at 9). However, Plaintiff has not pled sufficient facts to 8 demonstrate that similarly situated individuals were treated more favorably because of their 9 age. Plaintiff asserts that, on more than one occasion, Fluesche emphasized how old Plaintiff 10 was after Plaintiff expressed her personal issues of pain or illness. (Id. at 6). She also alleges 11 that “a Caucasian employee (aide under me)” was written up twice without being fired. (Id. 12 at 10). In her Response, Plaintiff clarifies that the Caucasian male aide was “young”. (Doc. 13 10). However, to show that the employees allegedly receiving more favorable treatment are 14 similarly situated, Plaintiff “must demonstrate, at least, that [she is] similarly situated to 15 those employees in all material respects.” Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006). 16 Individuals are similarly situated when “they have similar jobs and display similar conduct.” 17 Vasquez v. Cnty. of L.A., 349 F.3d 634, 641 (9th Cir. 2004). Employees in supervisory 18 positions are generally deemed not to be similarly situated to lower level employees. See id. 19 (citing Ward v. Procter & Gamble Paper Prods. Co., 111 F.3d 558, 560–61 (8th Cir. 1997)). 20 Plaintiff, a Site Leader, only points to a young aide who was not terminated despite two 21 write-ups even though Plaintiff was terminated without any warnings or write-ups. (Doc. 1 22 at 10). Plaintiff has failed to demonstrate that the young aide held a similar job; in fact, she 23 seems to assert the opposite by indicating that the aide worked “under [her]”. (Id.). Nor has 24 25 26 27 28 1 Although a district court generally may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion, material which is properly submitted as part of the complaint may be considered. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). Because Plaintiff’s EEOC Charge of Discrimination is part of her complaint and its authenticity has not been called into question, it is appropriate for the Court to consider it in resolving the motion to dismiss. -4- 1 Plaintiff alleged that the aide displayed similar conduct. These allegations, therefore, are not 2 sufficient to establish that employees who were both substantially younger and similarly 3 situated were treated more favorably. 4 “In civil rights cases where the plaintiff appears pro se, the court must construe the 5 pleading liberally and must afford plaintiff the benefit of any doubt.” Karim-Panahi v. L.A. 6 Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). Additionally, “[a] pro se litigant must be 7 given leave to amend his or her complaint unless it is absolutely clear that the deficiencies 8 of the complaint could not be cured by amendment.” Id. (quotation marks and citations 9 omitted). In this case, Plaintiff could cure her ADEA claim by demonstrating that similarly 10 situated employees outside her protected class were treated more favorably. Accordingly, 11 Plaintiff’s ADEA claim is dismissed, with leave to amend. 12 B. 13 Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on 14 account of race. 42 U.S.C. § 2000e-2(a) (“It shall be an unlawful employment practice for 15 an employer . . . to discharge any individual . . . because of such individual’s race, color, 16 religion, sex, or national origin.”). As the Supreme Court set forth in McDonnell Douglas, 17 there are four elements a plaintiff must satisfy in order to establish a prima facie case of 18 racial discrimination. 411 U.S. at 792. “[T]he plaintiff must show that (1) he belongs to a 19 protected class; (2) he was qualified for the position; (3) he was subject to an adverse 20 employment action; and (4) similarly situated individuals outside his protected class were 21 treated more favorably.” Id.; Moran, 447 F.3d at 753. The proof required to establish the 22 prima facie case is “minimal and does not even need to rise to the level of a preponderance 23 of the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). Nevertheless, 24 Plaintiff “must offer evidence that ‘give[s] rise to an inference of unlawful discrimination,’ 25 either through the framework set forth in McDonnell Douglas or with direct or circumstantial 26 evidence of discriminatory intent.” Vasquez, 349 F.3d at 640. Race Discrimination 27 Under the McDonnell Douglas framework, Plaintiff has failed to establish a prima 28 facie case of racial discrimination. Plaintiff has alleged that she is a member of a protected -5- 1 class by asserting that she is African American. (Doc. 1). Plaintiff also sets forth sufficient 2 facts to demonstrate that she was qualified for the position. These include her factual 3 allegations that she had never been written-up, and that she received the highest marks 4 possible in her May 2010 appraisal. (Doc. 1 at 10). Plaintiff has also adequately pled that her 5 September 2010 termination constituted an adverse employment action. Nevertheless, as with 6 her age discrimination claim, Plaintiff has failed to allege sufficient facts to establish that 7 similarly situated individuals outside her protected class were treated more favorably. Again, 8 Plaintiff only alleges that a Caucasian aide who worked under her was written up twice but 9 never terminated. Plaintiff has set forth no facts to demonstrate that she and the aide had 10 similar jobs or displayed similar conduct. Moreover, Plaintiff’s assertion that she was the 11 only African-American employee at the school, without more, does not provide sufficient 12 support for this element. Because Plaintiff has failed to allege facts establishing that similarly 13 situated employees outside her protected class were treated more favorably, her Title VII 14 claim is dismissed, with leave to amend. 15 C. 16 The Arizona Equal Protection Act (“AEPA”) provides several scenarios in which an 17 employee may sue for wrongful termination. A.R.S. § 23-1501(3). Beyond a single isolated 18 reference to “wrongful termination,” Plaintiff makes no further reference to this claim or 19 identifies which scenario it is based upon. Wrongful Termination 20 To determine “whether claims survive a motion to dismiss, the Court looks to the 21 [Complaint] in its entirety, not merely the count as articulated. Thus, the Court must consider 22 if there are any plausible claims that can be maintained from the allegations asserted, not just 23 the specific statute alleged.” Lombardi v. Copper Canyon Academy, LLC, 2010 WL 24 3775408, at *6 (D. Ariz. Sept. 21, 2010). In Lombardi v. Copper Canyon Academy, LLC, the 25 plaintiff’s AEPA claim survived a motion to dismiss because the Court found that the 26 complaint “as a whole demonstrate[d] a violation of AEPA,” so the claim would “not be 27 dismissed for failure to cite the correct section of the AEPA that was violated or failure to 28 state which source statute was violated under the AEPA.” (Id.). Plaintiff’s Complaint, viewed -6- 1 in its entirety, could plausibly state a claim for wrongful termination pursuant to A.R.S. § 23- 2 1501(3)(b), which provides that “[t]he employer has terminated the employment relationship 3 of an employee in violation of a statute of this state.” Specifically, Plaintiff likely alleges a 4 violation of the Arizona Civil Rights Act (“ACRA”), A.R.S. § 41-1463(B)(1). ACRA, in 5 part, states: “[i]t is an unlawful employment practice for an employer . . . to discharge any 6 individual . . . because of the individual’s race, color, religion, sex, age or national origin or 7 on the basis of disability.” A.R.S. § 41-1463(B)(1). However, because it remains unclear on 8 what protected characteristic Plaintiff is asserting wrongful termination – age, race, or both 9 – the Court dismisses Plaintiff’s claim, with leave to amend. 10 CONCLUSION 11 Defendant’s Motion to dismiss is granted with respect to all three claims. At the same 12 time, the Court “should freely give leave [to amend] when justice so requires.” FED. R. CIV. 13 P. 15(a)(2). The Ninth Circuit has characterized this as a standard of “extreme liberality.” 14 Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009) (internal quotations marks 15 omitted). Given that Plaintiff may be able to allege sufficient facts with regard to her claims, 16 dismissal is with leave to amend. IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss (Doc. 4) is 17 18 GRANTED. 19 IT IS FURTHER ORDERED that Plaintiff shall have 30 days from the date of this 20 Order to file an amended complaint with respect to her claims. If an amended complaint is 21 not timely filed on this claim by August 22, 2011, it will be terminated consistent with this 22 Order. Should Plaintiff choose to file an amended complaint, the Court requests that it 23 comply with Local Rule of Civil Procedure 7.1. 24 /// 25 /// 26 /// 27 /// 28 /// -7- 1 IT IS FURTHER ORDERED directing the Clerk of the Court to terminate this 2 matter after August 22, 2011, should Plaintiff not file an amended complaint, without further 3 notice. 4 DATED this 22nd day July, 2011. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-

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