Lewallen v. Home Depot USA Incorporated

Filing 41

ORDER: Defendant's 34 Motion to Dismiss First Amended Complaint with Prejudice is granted. FURTHER ORDERED that Plaintiff's 31 amended complaint is dismissed. FURTHER ORDERED that Plaintiff may file a second amended complaint by 5:00 p.m., 07/30/12. If Plaintiff does not file a second amended complaint by 5:00 p.m., 07/30/12, the Clerk shall terminate this case without further notice to Plaintiff. See order for details. Signed by Judge Neil V. Wake on 7/23/12. (NKS)

1

WO

2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE DISTRICT OF ARIZONA

9
10

Yvonne Lewallen,

11

No. CV 11-01639-PHX-NVW
Plaintiff,

12

vs.

13

ORDER

Home Depot USA, Inc.,

14

Defendant.

15
16

Before the Court is Defendant’s Motion to Dismiss First Amended Complaint with

17

Prejudice (Doc. 34). The Motion is in font size smaller than 13 point, in footnotes, in

18

violation of LRCiv 7.1(b)(1). The Response contains numerous passages in single space,

19

not double space as required by the same rule. Both filings would have been summarily

20

stricken if noticed earlier.

21

noticed.

22

I.

Future non-complying filings will be stricken whenever

PARTIES
In the caption of a complaint, the title must name all of the parties. Fed. R. Civ. P.

23
24

10(a).

The caption of Plaintiff’s amended complaint (Doc. 31) names only one

25

defendant, which is Home Depot USA, Inc. Although the text of the amended complaint

26

refers both to Defendant Home Depot and to Defendant Cynthia “Kat” Katayam,

27

Katayam is not identified as a defendant in the caption, the record does not show

28

evidence of service of process on Katayam, and the deadline for joining additional parties

1
2
3
4

passed several months before the amended complaint was filed. Therefore, the only
defendant in this case is Home Depot USA, Inc. (hereafter “Home Depot”).
II.

LEGAL STANDARD

5

On a motion to dismiss under Fed. R. Civ. P. 12(b)(6), all allegations of material

6

fact are assumed to be true and construed in the light most favorable to the nonmoving

7

party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). To avoid dismissal, a

8

complaint must contain “only enough facts to state a claim for relief that is plausible on

9

its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial

10

plausibility when the plaintiff pleads factual content that allows the court to draw the

11

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

12

Iqbal, 556 U.S. 662, 678 (2009). The principle that a court accepts as true all of the

13

allegations in a complaint does not apply to legal conclusions or conclusory factual

14

allegations. Id.

15

Generally, material beyond the pleadings may not be considered in deciding a

16

Rule 12(b)(6) motion. However, material properly submitted as part of the complaint and

17

documents not physically attached to the complaint whose contents are alleged in a

18

complaint and whose authenticity no party questions may be considered. Branch v.

19

Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith v.

20

County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).

21

III.

FACTS ASSUMED TO BE TRUE

22

Plaintiff Yvonne Lewallen is a Mexican American or Latino female. (Doc. 31 at

23

6.) She was employed by Home Depot from March 26, 1996, until April 21 or 22, 2011.

24

She “has a history and record of regular salary increases and bonuses.” (Id. at 3.)

25

About two years before Lewallen’s employment was terminated, Home Depot

26

transferred Katayam to the Arizona store at which Lewallen was employed. Katayam

27

was Lewallen’s supervisor. Lewallen received negative ratings and comments in her

28

-2 

1
2
3
4
5
6
7
8
9

April 2010 evaluation, which were later revised after she complained to higher
management. Lewallen also was placed on a performance improvement plan, from
which she was later released as instructed by higher management. She was “repeatedly
verbally harassed by her supervisor.” (Id. at 4.) “[I]nappropriate racial comments were
made to her and other Latino females regarding their hair, nails, clothing, breast size.”1
(Id.) Multiple complaints against Lewallen were filed with the “employee aware line.”
(Id.) She was required to resign from an employee planning committee. These acts
interfered with her ability to perform her assigned duties. Lewallen “complained of the

10

acts against her, but could obtain no relief.”2 (Id.) On April 22, 2011, Lewallen’s

11

employment was terminated for alleged “Hazmat and RTV violations.”3 (Id.)

12
13
14
15
16
17
18

On April 21, 2011, Lewallen sought counseling from an equal employment
opportunity counselor and requested that Home Depot investigate and reinstate her
position. On April 24, 2011, Lewallen completed and signed a U.S. Equal Employment
Opportunity Commission (“EEOC”) intake questionnaire.

(Doc. 34-2.)

On the

questionnaire, she responded “yes” to the question “Are you Hispanic or Latino?” (Id. at
1.) The form asks the question, “What is the reason (basis) for your claim of employment
discrimination?” (Id. at 2.) The question is followed by an explanation in italics:

19
FOR EXAMPLE, if you feel that you were treated worse than
someone else because of race, you should check the box next
to Race. If you feel you were treated worse for several
reasons, such as your sex, religion and national origin, you

20
21
22
1

23
24
25
26
27
28

The amended complaint does not allege whether the verbal harassment and
inappropriate comments were made before and/or after the April 2010 negative
evaluation.
2

The amended complaint does not allege to whom Lewallen complained or
whether she did so before and/or after the April 2010 negative evaluation.
3

The amended complaint does not define “Hazmat” or “RTV.”
-3 

1
2

should check all that apply. If you complained about
discrimination, participated in someone else’s complaint, or
filed a charge of discrimination, and a negative action was
threatened or taken, you should check the box next to
Retaliation.

3
4
5
6
7

Lewallen checked only the box next to “Retaliation.” She did not check the box next to
“Race” or the box next to “Sex.”
On April 25, 2011, Lewallen filed a Charge of Discrimination presenting her claim

8
9
10
11
12

to the EEOC through the Arizona Attorney General’s Office, Civil Right Division
(“EEOC Charge”).

On the form, she indicated that she claimed

discrimination based on retaliation and did not check any other boxes, such as for race or
color, as a basis for her claim. (Id.) She wrote:
I was hired by the Respondent on March 26, 1996. In May
2010, I protested a performance review rating given to me by
my supervisor, Cynthia Katayama. Subsequently, I was
subjected to harassment by my supervisor in that I was
continuously nitpicked at about petty issues. On April 22, I
was terminated.

13
14
15
16
17

I believe that I was retaliated against in violation of Title VII
of the Civil Rights Act of 1964, as amended.

18
19

(Doc. 34-1.)

(Id.)

20

On May 21, 2011, Lewallen received a Notice of Right to Sue from the EEOC,

21

which is referenced in both her initial and amended complaint as an exhibit, but is not

22

attached to either. (See Docs. 1, 31.) On August 22, 2011, Lewallen filed her initial

23

complaint. (Doc. 1.) On April 19, 2012, Defendant’s Motion for Judgment on the

24

Pleadings was granted with leave to file an amended complaint. (Doc. 29.) On May 5,

25

2012, Lewallen filed an amended complaint, which identifies four causes of action: (1)

26

racial discrimination in violation of Title VII, (2) breach of contract and/or promissory

27
28

-4 

1
2
3
4
5
6

estoppel, (3) intentional infliction of emotional distress, and (4) intentional interference
with a contractual relationship. (Doc. 31.)
IV.

ANALYSIS
A.

Racial Discrimination in Violation of Title VII
1.

Exhaustion of Administrative Remedies

7

To establish federal subject matter jurisdiction over a Title VII claim, a plaintiff

8

must exhaust his or her administrative remedies by filing a timely charge with the EEOC,

9

or the appropriate state agency, thereby affording the agency opportunity to investigate

10

the charge. B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099 (9th Cir. 2002) (citing 42

11

U.S.C. § 2000e-5(b)). “Incidents of discrimination not included in an EEOC charge may

12

not be considered by a federal court unless the new claims are like or reasonably related

13

to the allegations contained in the EEOC charge,” that is, unless an EEOC investigation

14

of the EEOC charge reasonably would have encompassed the additional charges. Green

15

v. Los Angeles Cnty. Superintendent of Sch., 883 F.2d 1472, 1475-76 (9th Cir. 1989)

16

(internal quotation marks and citations omitted). Charges filed before the EEOC must be

17

construed liberally. Id. at 1476.

18

Home Depot contends that the Court lacks jurisdiction to consider Lewallen’s

19

claims for “disparate impact race discrimination pursuant to pattern and practice,

20

disparate treatment, harassment and hostile work environment” because her EEOC

21

Charge did not give notice that those claims were included within the scope of her claim

22

of retaliation. On both the EEOC intake form and her EEOC Charge, Lewallen indicated

23

that her claim was for retaliation. Her EEOC Charge states that she was harassed by her

24

supervisor after Lewallen protested the performance review rating she received from her

25

supervisor and that the harassment consisted of being “continuously nitpicked.” On its

26

face, the EEOC Charge states that Lewallen was the subject of retaliation because she

27

complained about her performance review rating. To the extent that the EEOC intake

28

-5 

1
2
3
4
5
6
7
8
9
10
11
12

form incorporates complaining about discrimination into its definition of retaliation, it
appears that Lewallen claimed she was discriminated against because she protested her
performance review rating. Neither form suggests she was given a poor rating because of
race or that the harassment she received after complaining was based on race. However,
on the intake form, Lewallen indicated that Melissa Perez, “Hispanic/white,” was treated
better than her, but Angelica Vazquez, “Hispanic,” was treated the same as her.
Therefore, construing the EEOC Charge liberally as it must, the Court concludes
that an EEOC investigation of the EEOC charge of retaliation reasonably would have
encompassed “disparate impact race discrimination pursuant to pattern and practice,
disparate treatment, harassment and hostile work environment.” See Green, 883 F.2d at
1475-76.

13

2.

Failure to State a Claim Upon Which Relief Can Be Granted

14

Lewallen’s first cause of action is titled “Defendant Home Depot’s Violation of

15

Title VII’s Prohibition Against Employment Discrimination Racial Discrimination.”

16

(Doc. 31 at 6.) The amended complaint includes only legal conclusions and conclusory

17

factual allegations regarding any form of racial discrimination. See Iqbal, 556 U.S. at

18

678. Even Lewallen’s response to the motion to dismiss states: “Plaintiff was terminated

19

in retaliation for her repeated complaints to HR and upper management against Ms.

20

Katayama, and her disclosure of store violations and improper markdown procedures.”

21

(Doc. 37 at 11.) The amended complaint does not allege any specific facts to support a

22

claim for discrimination, harassment, hostile work environment, or retaliation on the

23

basis of race and therefore fails to state a claim upon which relief can be granted.

24

B.

Breach of Contract and/or Promissory Estoppel

25

The amended complaint alleges that Home Depot violated its employment policies

26

and breached its implied employment contract with Lewallen, but it does not directly

27

allege how Home Depot did so. The only factual allegation regarding Home Depot’s acts

28

-6 

1
2
3
4
5

of violation or breach is the following: “Specifically, Ms. Lewallen was not terminated
for cause in that Defendant did not properly determine whether or not there was cause
and did not follow its policies, practices and procedures with regard to Ms. Lewallen’s
complaints of retaliation and harassment by Ms. Katayam.” (Doc. 31 at 8.)

6
7
8
9
10
11
12
13
14

Lewallen’s response to the motion to dismiss does not respond to Home Depot’s
arguments and supporting authority regarding her claim for breach of contract and/or
promissory estoppel whatsoever. She does not dispute that when she began employment
with Home Depot, she acknowledged in writing that her employment was at will and the
employee manual was not a contract. Moreover, the amended complaint alleges that
Home Depot terminated her employment for cause, i.e., based on “multiple allegations
and charges regarding Hazmat and RTV violations.” (Id. at 4.) Therefore, the amended
complaint fails to state a claim for breach of contract and/or promissory estoppel upon
which relief can be granted.

15

C.

Intentional Infliction of Emotional Distress

16

The amended complaint alleges only legal conclusions and conclusory factual

17

allegations in support of Lewallen’s claim of intentional infliction of emotional distress.

18

Lewallen’s response to the motion to dismiss states that to prevail on this claim she must

19

show that the Defendant’s conduct is capable of being characterized as “extreme and

20

outrageous,” and that the trial court must decide whether the acts underlying the claim

21

can be considered sufficiently extreme and outrageous to state a claim for relief. The

22

response further states that during the two years Lewallen worked with Katayama,

23

“numerous remarks were made to the Mexican American female employees regarding

24

their clothing, hair, nails, makeup and the size of their breasts,” and “Defendant had

25

reason to know that Plaintiff was a divorced, single mother dealing with a child with

26

physical and learning disabilities which placed Plaintiff in a fragile or more vulnerable

27

state.”

28

The amended complaint does not allege Home Depot’s knowledge about
-7 

1
2
3
4
5
6
7

Lewallen’s vulnerabilities, but even if it did, numerous remarks, unrelated to Lewallen’s
vulnerabilities, made to multiple people, do not constitute extreme and outrageous
conduct. Further, Lewallen does not respond to Home Depot’s authority showing much
more egregious conduct that Arizona courts found insufficient to be considered extreme
and outrageous. Therefore, the amended complaint does not state a claim upon which
relief can be granted.

8
9
10
11
12
13

Moreover, the amended complaint alleges that Katayam’s acts caused her extreme
emotional distress and were “in no way related to any discretionary authority of Ms.
Katayam or to any purpose or objective of the Home Depot.” Home Depot generally
would not be liable for Katayam’s actions outside of the course and scope of her
employment, and the amended complaint fails to allege any other basis for Home Depot’s
vicarious liability for Katayam’s actions.

14

D.

Intentional Interference with a Contractual Relationship

15

The amended complaint identifies a “sixth cause of action” against “Defendant,

16

individually,” for “Intentional Interference with a Contractual Relationship.” It refers

17

only to “Defendant Katayam,” who is not a named defendant in this action. It therefore

18

fails to state a claim upon which relief can be granted.

19

E.

Violation of Public Policy

20

The amended complaint does not set forth a separate claim for violation of public

21

policy. “Violation of public policy” is included in a list of grounds for liability under the

22

heading “Injury/Damages,” but is not alleged as a cause of action.

23

V.

LEAVE TO AMEND

24

Plaintiff seeks leave to file a second amended complaint if her first amended

25

complaint is found insufficient. Although leave to amend should be freely given “when

26

justice so requires,” Fed. R. Civ. P. 15(a)(2), the Court has “especially broad” discretion

27

to deny leave to amend where the plaintiff already has had one or more opportunities to

28

-8 

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

amend a complaint. Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1161 (9th Cir.
1989). “Leave to amend need not be given if a complaint, as amended, is subject to
dismissal.” Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989).
“Futility of amendment can, by itself, justify the denial of a motion for leave to amend.”
Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).
Lewallen was previously granted leave to amend her complaint and did so
unsuccessfully. She will be granted leave to amend one more time.
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss First
Amended Complaint with Prejudice (Doc. 34) is granted.
IT IS FURTHER ORDERED that Plaintiff’s amended complaint (Doc. 31) is
dismissed.
IT IS FURTHER ORDERED that Plaintiff may file a second amended complaint
by 5:00 p.m., July 30, 2012. If Plaintiff does not file a second amended complaint by
5:00 p.m., July 30, 2012, the Clerk shall terminate this case without further notice to
Plaintiff.
Dated this 23rd day of July, 2012.

18
19
20
21
22
23
24
25
26
27
28

-9