Yahweh v. Phoenix, City of et al

Filing 18

ORDER granting 13 Defendant City of Phoenix's Motion to Dismiss. This case is dismissed with prejudice. Signed by Judge G Murray Snow on 10/30/13.(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 12 13 14 15 16 17 ORDER Plaintiff, 10 11 No. CV-13-00548-PHX-GMS Terry Yahweh, v. City of Phoenix, a political subdivision of the State of Arizona; and City of Phoenix Police Department, Defendants. Pending before the Court is Defendant City of Phoenix’s Motion to Dismiss (Doc. 13.) For the following reasons, the motion is granted. BACKGROUND 18 This case arises out of Plaintiff’s employment with the City of Phoenix (“City”). 19 (Doc. 11 ¶¶ 11–12.) Plaintiff was hired as a patrol officer with the City of Phoenix Police 20 Department (“Department”) in 1989 and assigned to the Robbery Unit as a detective in 21 1998. (Id.) He alleges that he was subjected to race-based discrimination and retaliation 22 by members of the Department beginning in 2009 through December 2011. (Id. ¶¶ 13, 23 33.) Plaintiff alleges that he has experienced unfair and inconsistent treatment compared 24 to Department employees who are not African-American. (Doc. 11 ¶¶ 40–48.) He alleges 25 that his work has been subject to unjustified intensive scrutiny compared to these other 26 employees. (Id. ¶ 47.) Plaintiff further alleges that he was retaliated against for reporting 27 this discrimination and filing complaints with both the City’s Equal Opportunity 28 Department (“EOD”) and with the EEOC. (Id. ¶¶ 47, 49–55.) In his Amended Complaint, 1 Plaintiff seeks compensatory damages and injunctive relief. (Id. at 11.) Plaintiff filed the 2 present action on March 15, 2013 (Doc. 1) and filed his First Amended Complaint on 3 June 5, 2013 (Doc. 11). 4 Defendant now moves to dismiss the action because (1) nearly all of Plaintiff’s 5 claims are barred by res judicata because Plaintiff previously brought nearly identical 6 claims against the City in both state and federal court and (2) because Plaintiff’s only 7 possible claim not barred by res judicata does not rise to the level of an adverse 8 employment action under Title VII. (Doc. 13.) DISCUSSION 9 10 I. Res Judicata 11 Rule 8(c) of the Federal Rules of Civil Procedure denotes res judicata as an 12 affirmative defense. Ordinarily, affirmative defenses may not be raised in a motion to 13 dismiss. Res judicata, however, may be asserted in a motion to dismiss so long as it does 14 not raise any disputed issues of fact. Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 15 1984). The City bases its res judicata argument on Plaintiff’s First Amended Complaint 16 in this case (Doc. 11), the complaint in case number 2:11–CV–00410–ROS, and the 17 Order granting Defendants’ Motion to Dismiss in that case. Thus, the City’s res judicata 18 argument does not present any disputed issues of fact, and consideration of it on a motion 19 to dismiss is appropriate. 20 In October 2010, Plaintiff brought an essentially identical case against the City 21 under the Arizona Civil Rights Act (“ACRA”) in Maricopa County Superior Court, also 22 alleging race-based employment discrimination beginning in 2009. (Doc. 13, Ex. B.) That 23 suit contained two ACRA claims: 1) race-based discrimination and 2) retaliation for 24 reporting that discrimination. Plaintiff’s state case did not assert any claims under Title 25 VII. On January 13, 2011, Plaintiff’s claims against the City were dismissed with 26 prejudice because of his failure to serve the statutorily mandated Notice of Claim. (Doc. 27 13, Ex. A.) 28 In March 2011, Plaintiff brought an essentially identical case against the City in -2- 1 federal court, alleging both race discrimination and retaliation under Title VII. 2 Complaint, Yahweh v. City of Phoenix, No. CV-11-410-ROS (D. Ariz. March 3, 2011) 3 (Doc. 1); First Amended Complaint, Yahweh v. City of Phoenix, No. CV-11-410-ROS (D. 4 Ariz. June 22, 2011) (Doc. 6). In November 2011, Judge Silver granted a motion to 5 dismiss filed by the City against Plaintiff. See Yahweh v. City of Phoenix, No. CV-11- 6 410-ROS (D. Ariz. Nov. 9, 2011) (Doc. 24); (Doc. 13, Ex. B). Judge Silver noted that 7 Plaintiff’s federal case was nearly identical to his earlier state case, apart from asserting 8 his two claims under Title VII instead of the ACRA. As the case involved the preclusive 9 effect of an Arizona state court judgment on a later federal action, Judge Silver applied 10 Arizona’s doctrine of claim preclusion and concluded that Plaintiff’s federal suit was 11 barred by his earlier state suit. (Doc. 13, Ex. B at 2.) She noted that the cases were 12 between the same parties, involved the same claim, and that the first case resulted in a 13 judgment on the merits. (Id. at 3–5.) Accordingly, Judge Silver dismissed the claims with 14 prejudice. (Id. at 5–6.) 15 Plaintiff filed the present case, his second federal suit, in this Court on March 15, 16 2013. (Doc. 1.) As in his first two suits, Plaintiff alleges both race-based discrimination 17 and retaliation, occurring between 2009 and 2011 during his employment with the 18 Phoenix Police Department. As in his first federal suit, Plaintiff brings these claims under 19 Title VII. Because Plaintiff asserts that this Court has federal question jurisdiction under 20 28 U.S.C. § 1331, the federal law of res judicata governs the City’s defense. “Res 21 judicata is applicable whenever there is (1) an identity of claims, (2) a final judgment on 22 the merits, and (3) privity between parties.” Stratosphere Litig. L.L.C. v. Grand Casinos, 23 Inc., 298 F.3d 1137, 1143 n.3 (9th Cir. 2002) (citing Owens v. Kaiser Found. Health 24 Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001)). Word-for-word similarity is not necessary 25 to show identity of claims. “Res judicata bars relitigation of all grounds of recovery that 26 were asserted, or could have been asserted, in a previous action between the parties, 27 where the previous action was resolved on the merits.... [T]he relevant inquiry is whether 28 the [claims] could have been brought.” United States ex rel. Barajas v. Northrop Corp., -3- 1 147 F.3d 905, 909 (9th Cir. 1998). 2 For purposes of res judicata, most of the claims Plaintiff brings here are identical 3 to those Judge Silver dismissed in November 2011. Plaintiff asserts that he now brings a 4 number of different allegations, some of which occurred before his first federal case was 5 dismissed and some of which occurred after, in December 2011. (Doc. 11 ¶¶ 30–35.) 6 Plaintiff’s allegations that occurred prior to the dismissal of his first federal action on 7 November 10, 2011, fail to qualify as new claims for the purposes of res judicata. “[R]es 8 judicata (or claim preclusion) bar(s) all grounds for recovery which could have been 9 asserted, whether they were or not, in a prior suit between the same parties. . . on the 10 same cause of action.” Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir. 1998) (citation 11 omitted). The Ninth Circuit examines four factors in determining whether a cause of 12 action asserted in a prior action is the same as a cause of action asserted in the current 13 action: “(1) whether rights or interests established in the prior judgment would be 14 destroyed or impaired by prosecution of the second action; (2) whether substantially the 15 same evidence is presented in the two actions; (3) whether the two suits involve 16 infringement of the same right; and (4) whether the two suits arise out of the same 17 transactional nucleus of facts.” In re Imperial Corp. of Am., 92 F.3d 1503, 1506 (9th Cir. 18 1996). 19 Each of these factors demonstrate that Plaintiff’s earlier claims are the same as his 20 current claims. Allowing Plaintiff to proceed in this action would destroy the City’s right 21 to finality from the prior judgment. Both suits involve evidence of alleged racially- 22 motivated actions taken regarding Plaintiff and comments made to and about Plaintiff at 23 the Phoenix Police Department between 2009 and 2011. The suits are both Title VII race 24 discrimination and retaliation cases, arising from the same two year period of Plaintiff’s 25 employment at the Department. To the extent the complaints feature some different 26 allegations of conduct that occurred prior to the dismissal of his first federal lawsuit, the 27 differences between the complaints are not sufficient to constitute different claims under 28 res judicata principles. Any difference qualifies as a “ground[] of recovery that ... could -4- 1 have been asserted,” in the previous action. Barajas, 147 F.3d at 909. 2 The remaining elements of res judicata are also met. A Rule 12(b)(6) dismissal for 3 failure to state a claim is a final judgment for purposes of res judicata. See Stewart v. U.S. 4 Bancorp, 297 F.3d 953, 957 (9th Cir. 2002) (“[A] dismissal for failure to state a claim 5 under Rule 12(b)(6) is a judgment on the merits to which res judicata applies.”) Further, 6 the parties in both actions are identical. As such, Plaintiff’s claims that existed before the 7 dismissal of his first federal suit are barred by res judicata. 8 II. Remaining December 2011 Allegations 9 Plaintiff’s Amended Complaint also alleges an incident that occurred in December 10 2011, after the dismissal of his first federal suit. (Doc. 11 ¶¶ 30–35.) As noted above, this 11 incident could not have been alleged in Plaintiff’s earlier suits, and thus is not barred by 12 res judicata. However, these allegations fail to state a claim under Title VII. 13 A. 14 Rule 12(b)(6) is designed to “test the legal sufficiency of a claim.” Navarro v. 15 Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive dismissal for failure to state a claim 16 pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must contain more than 17 “labels and conclusions” or a “formulaic recitation of the elements of a cause of action”; 18 it must contain factual allegations sufficient to “raise a right to relief above the 19 speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While “a 20 complaint need not contain detailed factual allegations . . . it must plead ‘enough facts to 21 state a claim to relief that is plausible on its face.’” Clemens v. DaimlerChrysler Corp., 22 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “A claim has 23 facial plausibility when the plaintiff pleads factual content that allows the court to draw 24 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft 25 v. Igbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). Plausibility 26 requires “more than a sheer possibility that a defendant has acted unlawfully.” Twombly, 27 550 U.S. at 555. 28 Legal Standard Accordingly, a plaintiff must do more than employ “labels,” “conclusions,” or a -5- 1 “formulaic recitation of the elements of a cause of action.” Id. When analyzing a 2 complaint for failure to state a claim under Rule 12(b)(6), “[a]ll allegations of material 3 fact are taken as true and construed in the light most favorable to the nonmoving party.” 4 Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). However, legal conclusions 5 couched as factual allegations are not given a presumption of truthfulness, and 6 “conclusory allegations of law and unwarranted inferences are not sufficient to defeat a 7 motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). 8 B. 9 Plaintiff alleges that, on or about December 16, 2011, he was contacted by his 10 union and asked to meet with Phoenix Police Assistant Chief Kevin Robinson. (Doc. 11 ¶ 11 30.) In the meeting, Robinson informed Plaintiff that a disparaging joke had been made 12 about Plaintiff at a Phoenix Police Executive Staff meeting earlier that week and that a 13 number of people had laughed at the joke. (Id. ¶ 31.) Robinson told Plaintiff that he had 14 shared this incident with the City of Phoenix Human Resources office and with an EOD 15 lead investigator. (Id.) On December 23, 2011, Plaintiff met again with Assistant Chief 16 Robinson and told Robinson that he had learned that Commander Benny Piña made the 17 joke and that the joke involved comparing Plaintiff to a therapy dog at the Child Help 18 facility. (Id. ¶¶ 33–34.) Plaintiff alleges Commander Piña and others in the department 19 displayed their disdain for the Plaintiff as an African-American by laughing at 20 Commander Piña’s joke. (Id. ¶ 36.) 21 22 Application These December 2011 allegations fail to state a claim under Title VII, either under a theory of racial harassment or retaliation. 23 Here, Plaintiff alleges that Commander Piña made a single comment that may 24 have been an offensive reference to Plaintiff, but the Amended Complaint never actually 25 avows that the statement was based on Plaintiff’s race—nor is it obvious from the alleged 26 statement that the comment was so related. 27 Further, harassment based on race is actionable under Title VII only if it is 28 “sufficiently severe or pervasive to alter the conditions of the victim’s employment and -6- 1 create an abusive working environment.” Ray v. Henderson, 217 F.3d 1234, 1245 (9th 2 Cir. 2000) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)). “It must be 3 both objectively and subjectively offensive.” Id. (citing Faragher v. City of Boca Raton, 4 524 U.S. 775, 787 (1998)). “To determine whether an environment is sufficiently hostile, 5 [the court] look[s] to the totality of the circumstances, including the ‘frequency of the 6 discriminatory conduct; its severity; whether it is physically threatening or humiliating, or 7 a mere offensive utterance; and whether it unreasonably interferes with an employee’s 8 work performance.’” Id. (quoting Faragher, 524 U.S. at 787 (quoting Harris, 510 U.S. at 9 23)). “Simple teasing, offhand comments, and isolated incidents (unless extremely 10 serious) will not amount to discriminatory changes in the terms and conditions of 11 employment.” Faragher, 524 U.S. at 788 (internal citation omitted.) This incident as 12 alleged by the Amended Complaint does not rise to the level of a hostile work 13 environment under Title VII. Plaintiff alleges that Assistant Chief Robinson quickly 14 informed him that this incident had occurred and that Assistant Chief Robinson reported 15 the incident to Human Resources and the EOD. As such, it appears that the Department 16 made an effort to remedy this incident. The incident, as alleged, cannot be said to have 17 either altered the terms of Plaintiff’s employment or created an abusive work 18 environment. Thus, Plaintiff fails to establish a prima facie case of race-based 19 harassment. 20 To the extent that Plaintiff alleges that the incident somehow constitutes 21 retaliation, “[t]o establish retaliation, the [plaintiff] ... must prove that: (1) [he] engaged in 22 a protected activity; (2) [he] suffered an adverse employment decision; and (3) there was 23 a causal link between [his] activity and the adverse employment decision.” EEOC v. 24 Luce, Forward, Hamilton & Scripps, 303 F.3d 994, 1004–05 (9th Cir. 2002). Here, even 25 if Plaintiff’s previous complaints constituted protected activity, Plaintiff fails to allege 26 that the comment made in December 2011 or response to that comment constitutes an 27 adverse employment decision that followed this protected activity, or any causal link. 28 Accordingly, he fails to assert a prima facie case of retaliation. -7- 1 2 3 4 5 Thus, Plaintiff’s December allegations, his only allegations not barred by the doctrine of res judicata, fail to assert a claim on which relief may be granted. IT IS THEREFORE ORDERED that Defendant City of Phoenix’s Motion to Dismiss (Doc. 13) is GRANTED. This case is dismissed with prejudice. Dated this 30th day of October, 2013. 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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