Johnson v. Federal Express Corporation
Filing
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ORDER denying 17 Motion to Dismiss; finding as moot plaintiff's motion for leave to amend 20 . Signed by Judge David G Campbell on 4/15/2015.(DGC, nvo)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Paul Johnson,
No. CV-14-02428-PHX-DGC
Plaintiff,
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v.
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ORDER
Federal Express Corporation,
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Defendant.
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Plaintiff Paul Johnson brings suit against Defendant Federal Express Corporation
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(“FedEx” or “Defendant”).
Plaintiff claims that FedEx retaliated against him and
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constructively discharged him in violation of Title VII of the Civil Rights Act of 1964, 42
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U.S.C. § 2000e; the Age Discrimination in Employment Act of 1967 (“ADEA”), 29
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U.S.C. § 621; and 42 U.S.C. § 1981. Doc. 15. FedEx moves to dismiss all claims
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pursuant to Rule 12(b)(6) because (1) Plaintiff’s § 1981 claims are barred by the statute
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of limitations, (2) Plaintiff has failed to exhaust his administrative remedies, (3) Plaintiff
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has failed to state a claim for retaliation, and (4) Plaintiff has failed to state a claim for
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constructive discharge. Doc. 17. Plaintiff has filed a response and request for leave to
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amend if necessary. Doc. 20. The Court will deny Defendant’s motion.
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I.
Background.
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Plaintiff alleges the following facts, which are assumed true for the purposes of
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this motion. FedEx hired Plaintiff on July 20, 1981. Doc. 15, ¶ 6. Plaintiff remained
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employed by FedEx until February 25, 2014. Id. During his employment, Plaintiff held
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various positions including courier, operations manager, senior manager, and dispatch
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senior manager. Id., ¶ 7. FedEx named Plaintiff either “Manager of the Year” or “Senior
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Manager of the Year” on twelve occasions between 1992 and 2010. Id., ¶¶ 8, 10. In
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2005, FedEx awarded Plaintiff the highest honor a FedEx Senior Manager can receive,
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the “Five Star Award.” Id., ¶ 9.
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Plaintiff worked as the senior manager of the DGLA station in Tempe, Arizona,
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from June 2003 until the DGLA station closed in June 2009. Id., ¶¶ 12, 13. Although
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Plaintiff was the senior manager at the station, FedEx did not inform Plaintiff about plans
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to close the DGLA station until four months after they had informed Plaintiff’s DGLA
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station coworkers. Id., ¶ 14. FedEx’s delay in informing Plaintiff of DGLA’s closure
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prevented Plaintiff from applying for two job openings in the Phoenix area that would
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have kept Plaintiff from having to relocate and move away from his family. Id., ¶¶ 15-
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16. In February of 2009, when Plaintiff was informed of FedEx’s plans to close DGLA,
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Plaintiff was 50 years old and one of five senior managers in the Phoenix area. Id., ¶¶ 13,
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18. At that time, Plaintiff had the most tenure among Phoenix area senior managers, but
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Plaintiff was the only senior manager forced to relocate. Id., ¶ 20.
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FedEx gave Plaintiff the option to either relocate to the LASA station in Las
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Vegas, or be “displaced” and have 90 days to secure a position at FedEx or have his
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employment terminated. Id., ¶ 24-25. Plaintiff chose to relocate to LASA station. Id.,
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¶ 26.
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employment opportunity (“EEO”) office because he believed his age and race were
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factors in the decision to require only Plaintiff’s relocation among the Phoenix area
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senior managers. Id., ¶¶ 27-28, 33.
In March 2009, Plaintiff filed an internal complaint with FedEx’s equal
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Upon learning that Plaintiff was transferring to the LASA station, Canyon District
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managing director Raffi Arzoumanian called Plaintiff to express his anger that Plaintiff
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applied for and received the LASA senior manager position. Id., ¶ 29. Arzoumanian told
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Plaintiff that Arzoumanian and FedEx vice president Glen Corbin would scrutinize every
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decision Plaintiff made. Id., ¶ 31. Shortly after Plaintiff started at LASA, Arzoumanian
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met with Plaintiff and told him that “filing an EEO was the biggest mistake you ever
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made.” Id., ¶ 32.
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In July 2009, Plaintiff filed a complaint with the Equal Employment Opportunity
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Commission – the first of four Plaintiff would file against FedEx – alleging that his age
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and race were the reasons Plaintiff was the only senior manager in the Phoenix area who
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was forced to relocate. Id., ¶¶ 33, 36. For the remainder of Plaintiff’s career with FedEx,
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Arzoumanian retaliated against Plaintiff through adverse actions that included threatening
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and abusive phone calls, unsubstantiated “Documented Counselings,” actions to prevent
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Plaintiff from promoting or transferring to positions that were closer to his family in
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Phoenix, and “taking actions that made Plaintiff’s working conditions so intolerable that
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a reasonable person in Plaintiff’s shoes would have felt compelled to resign.” Id., ¶¶ 33-
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34. As a result of these retaliatory actions, Plaintiff was forced in July of 2009 to file an
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internal harassment claim against Arzoumanian and to go on medical leave due to stress.
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Id., ¶ 35.
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In January 2010, Plaintiff’s doctors released him to return to work. Id., ¶ 37.
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Plaintiff accepted an operations manager position at the ADSA station in Addison, Texas
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because FedEx had no senior manager or operations manager openings in Arizona. Id.,
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¶ 38. After starting at the ADSA station, FedEx informed Plaintiff that his salary would
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be reduced by approximately $4,300 per year – a decision Plaintiff alleges was influenced
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by Arzoumanian. Id., ¶¶ 39-43. Plaintiff remained at the ADSA station from February
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2010 until October 2010, during which time Plaintiff again was named “Manager of the
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Year” and received a 3.9 of a possible 4.0 on his annual review. Id., ¶¶ 45-46.
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In September 2010, Plaintiff requested and received permission to apply for
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transfer positions closer to Phoenix in order to better cope with his anxiety disorder that
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intensifies when he is away from his family – labeled a “hardship transfer” by FedEx.
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Id., ¶¶ 17, 47-50. FedEx had no lateral openings in the Phoenix area at that time, so
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Plaintiff accepted an operations manager position at FLGA station in Flagstaff, Arizona.
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Id., ¶ 51. All positions at FLGA station ultimately reported to Arzoumanian. Id., ¶ 52.
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When Arzoumanian learned that Plaintiff applied for a transfer to the FLGA station,
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Arzoumanian called FLGA station management to ask if they could do without a new
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operations manager, but was told they could not. Id., ¶¶ 53-54. Plaintiff was placed in
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the position in October 2010. Id., ¶ 54. Shortly thereafter, Arzoumanian made an
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unannounced visit in which he refused to acknowledge Plaintiff and told Plaintiff’s direct
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supervisor, Bill Falshaw, “Bill, you’re not the problem here, [Plaintiff] is.” Id., 55-56.
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In November of 2011, Plaintiff requested and received another “hardship transfer.”
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Id., ¶ 57. During the 90-day window provided by the “hardship transfer” to apply for
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transfer positions, Plaintiff applied for at least three openings in the Phoenix area – two
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lateral positions posted by Arzoumanian and one lower level position. Id., ¶¶ 58-59, 60,
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72.
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“substantially greater credentials” than the candidates who were ultimately selected. Id.,
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¶¶ 58-77. After Arzoumanian did not interview Plaintiff for the first lateral position
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opening he applied for – senior manager at the ZYSA station – Plaintiff filed a complaint
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under FedEx’s Guaranteed Fair Treatment Procedure (“GFTP”) alleging that
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Arzoumanian discriminated against him based on his race and age, and retaliated against
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him for filing prior EEO and EEOC complaints. Id., ¶ 68.
Plaintiff was not selected to interview for any of the openings despite having
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In January 2012, Plaintiff filed a second complaint against Arzoumanian under the
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GFTP alleging discrimination based on race, age, and retaliation because Arzoumanian
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did not interview Plaintiff for the second lateral position he applied for – operations
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manager at the ZYSA station. Id., ¶ 78. After the second complaint, a FedEx human
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resources advisor contacted Plaintiff. Id., ¶ 79. The advisor told Plaintiff his January
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2012 complaint would be considered alongside his November 2011 complaint, and
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advised Plaintiff to withdraw the January 2012 complaint. Id., ¶¶ 79-80.
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Plaintiff asserts that Arzoumanian persuaded the FedEx advisor to contact Plaintiff
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and ask him to withdraw his January 2012 complaint. Id., ¶ 81. Plaintiff also asserts that
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FedEx failed to follow its own GFTP policy because, at Arzoumanian’s behest, it did not
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place the contested hiring selections on hold until after Plaintiff’s GFTP complaints were
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resolved. Id., ¶¶ 69-71, 82. Plaintiff claims that FedEx acknowledged it failed to follow
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its GFTP policy, but did not remedy the violation by transferring Plaintiff to a Phoenix
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area salaried position. Id., ¶¶ 82-92.
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In March 2012, after FedEx denied Plaintiff an interview or placement for either
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of the ZYSA station openings, Plaintiff filed his second EEOC charge alleging
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discrimination based on age and race.1 Id., ¶ 93. In retaliation of this protected action,
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Arzoumanian assigned Plaintiff a work productivity rate requirement that was twice as
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high as the work productivity rate requirement given to any other operations manager and
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which was impossible to achieve. Id., ¶¶ 94-101. In October 2012, Plaintiff filed his
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third EEOC charge alleging that he was retaliated against when Arzoumanian imposed
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the unrealistic work standards.2 Id., ¶ 102.
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Between October 2012 and May 2013, FedEx passed over Plaintiff twice more for
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lateral position openings in the Phoenix area. Id., ¶¶ 103-13. In May 2013, Plaintiff filed
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a third GFTP complaint against Arzoumanian alleging that he was discriminated and
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retaliated against based on his age and race. Id., ¶ 114. In response, FedEx appointed
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Arzoumanian to preside over Plaintiff’s GFTP complaint – a violation of FedEx GFTP
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policy. Id., ¶ 115. When Plaintiff asked FedEx to allow someone else to preside over his
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GFTP complaint, FedEx refused and Plaintiff withdrew his complaint. Id., ¶¶ 116-17.
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In July 2013, Plaintiff went back on medical leave to treat his stress. Id., ¶ 118. In
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February 2014, Plaintiff learned that FedEx had five part-time openings at the SCFA
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station in the Phoenix area. Id., ¶ 119. Plaintiff inquired about applying for one of these
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openings, but was told that no such openings existed. Id., ¶ 122. On February 25, 2014,
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Plaintiff “resigned/retired” from FedEx. Id., ¶ 125. In March 2014, FedEx hired five
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part-time drivers for the SCFA station from outside of the company. Id., ¶¶ 123-24. In
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August 2014, Plaintiff filed his fourth EEOC charge alleging that FedEx retaliated
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Charge No. 540-2012-01297 (“March 2012 Charge”).
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Charge No. 540-2012-03178 (“October 2012 Charge”).
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against him by not allowing him to apply or interview for the part time driver positions.3
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Id., ¶ 126.
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On August 29, 2014, the EEOC issued Plaintiff a right to sue letter for his August
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2014 EEOC charge. Id., ¶ 127. On September 5, 2014, the EEOC issued Plaintiff a right
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to sue letter for both his March 2012 EEOC Charge and his October 2012 EEOC charge.
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Id., ¶¶ 128-29. On October 31, 2014 Plaintiff filed this action. Doc. 1. Plaintiff
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amended his complaint on February 2, 2015. Doc. 15.
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II.
Legal Standard.
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When analyzing a complaint for failure to state a claim for relief under
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Rule 12(b)(6), the well-pled factual allegations are taken as true and construed in the light
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most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th
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Cir. 2009). Legal conclusions couched as factual allegations are not entitled to the
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assumption of truth, Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and are insufficient to
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defeat a motion to dismiss for failure to state a claim, In re Cutera Sec. Litig., 610 F.3d
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1103, 1108 (9th Cir. 2010). To avoid a Rule 12(b)(6) dismissal, the complaint must
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plead enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v.
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Twombly, 550 U.S. 544, 570 (2007).
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‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
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has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556).
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“[W]here the well-pleaded facts do not permit the court to infer more than the mere
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possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the
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pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
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III.
This plausibility standard “is not akin to a
Analysis.
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A.
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FedEx argues that “Plaintiff’s allegations arising out of his ‘forced move out of
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Arizona’ are barred by Section 1981’s four year statute of limitations.” Doc. 17 at 6-7.
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Additionally, FedEx asserts that Plaintiff’s Title VII and ADEA claims arising out of his
Time Bar Arguments.
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Charge No. 540-2014-02702 (“August 2014 Charge”).
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employment in Texas and his reduction in salary from January or February 2010 are
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barred because Plaintiff failed to file an EEOC Charge of discrimination within 300 days.
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Id. at 7. In response, Plaintiff states that only the allegations set forth in the March 2012
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Charge, October 2012 Charge, and August 2014 Charge are at issue in this action. He
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does not assert as claims the events identified by FedEx as untimely. Doc. 20 at 6-7.
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Plaintiff argues that the events occurring prior to the three EEOC charges
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mentioned above, including the relocation after the DGLA station was closed and the
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reduction in pay, are included in his complaint to show a pattern of retaliatory actions by
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Arzoumanian, and support an inference that adverse employment actions later suffered by
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Plaintiff were in retaliation for Plaintiff’s protected activities.
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Plaintiff is permitted to use information of prior acts in support of his current timely
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action. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (although a
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discrete discriminatory or retaliatory act is not actionable if time barred, the statute does
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not bar a party from using prior acts as background evidence in support of a timely
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claim). The Court will deny FedEx’s motion to dismiss these allegations, but will
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proceed with the understanding that they do not purport to set forth claims. The claims in
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this case are limited to those asserted in the March 2012 Charge, October 2012 Charge,
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and August 2014 Charge.
Id. at 6 n.1, 12-13.
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B.
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Title VII “prohibits retaliation against an employee ‘because he has opposed any
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practice made an unlawful employment practice’” by Title VII. Nelson v. Pima Cmty.
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College, 83 F.3d 1075, 1082 (9th Cir. 1996) (quoting 42 U.S.C. ' 2000e-3(a)).
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plaintiff makes a prima facie case of unlawful retaliation by producing evidence that
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(1) he engaged in activity protected by Title VII, (2) the employer subjected him to a
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materially adverse action, and (3) there was a causal link between the protected activity
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and the adverse action. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57
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(2006); Vasquez v. Cnty. of L.A., 349 F.3d 634, 642 (9th Cir. 2004); Lyons v. England,
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307 F.3d 1092, 1118 (9th Cir. 2002).
Failure to State a Claim for Retaliation.
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A
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FedEx concedes that Plaintiff engaged in protected activity by filing EEOC
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charges of discrimination. Doc. 17 at 7-8. FedEx argues, however, that Plaintiff has
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failed to show either a materially adverse employment action or a causal link between the
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protected activity and the adverse employment action. Id. at 8.
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An employment action is materially adverse if “it well might have dissuaded a
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reasonable worker from making or supporting a charge of discrimination.” White, 548
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U.S. at 57; see also Ray, 217 F.3d at 1243. Courts have held that denial of a promotion
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can be an adverse employer action. See Burlington Indus. v. Ellerth, 524 U.S. 742, 761;
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Ray, 217 F.3d at 1241-42. Plaintiff alleges that FedEx denied him promotional, lateral
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transfer, and lower-level transfer opportunities in retaliation of his protected acts.
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Doc. 15, ¶¶ 51-56, 58-77, 119-125. The Court finds these alleged facts sufficient to show
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a materially adverse employment action.
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Plaintiff must also show a causal link between his protected activity and the
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adverse employment action. The Supreme Court has held that Title VII retaliation claims
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“must be proved according to traditional principles of but-for causation, not the lessened
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causation test stated in § 2000e-2(m).” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct.
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2517, 2533 (2013). “This requires proof that the unlawful retaliation would not have
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occurred in the absence of the alleged wrongful action or actions of the employer.” Id.
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Plaintiff alleges that Arzoumanian told him in 2009 that “filing an EEO was the biggest
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mistake you ever made.” Doc. 15, ¶¶ 27, 28, 32. Plaintiff alleges that Arzoumanian
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subsequently prevented Plaintiff from being promoted or transferring to positions near his
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family in Phoenix (id., ¶¶ 60-71, 72-82, 103-13, 119-24); posted a number of these
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positions for which Plaintiff was not selected or interviewed (id., ¶¶ 60, 72); attempted to
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eliminate a job for which Plaintiff had been selected (id., ¶¶ 51-53); and influenced a
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number of FedEx’s other adverse actions against Plaintiff including the decision to
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disregard their own internal policies on multiple occasions (id., ¶¶ 78-129).
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allegations are sufficient to satisfy the “but-for” causation requirement established by the
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Supreme Court in Nassar. See 133 S.Ct at 2533.
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Because Plaintiff has sufficiently pled the elements of a retaliation claim under
Title VII, the ADEA, and § 1981, the Court will deny Defendant’s motion to dismiss.
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C.
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FedEx argues that Plaintiff has failed to state a claim for constructive discharge.
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Doc. 17 at 11-13. “Constructive discharge occurs when, looking at the totality of the
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circumstances, a reasonable person in the employee=s position would have felt that he was
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forced to quit because of intolerable and discriminatory working conditions.” Wallace v.
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City of San Diego, 479 F.3d 616, 625 (9th Cir. 2007) (citation and alterations omitted).
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“‘Whether working conditions were so intolerable and discriminatory as to justify a
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reasonable employee’s decision to resign is normally a factual question for the jury.’” Id.
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at 626 (citation omitted). The Ninth Circuit has held that a constructive discharge claim
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can be shown through a continuous pattern of discriminatory treatment over months and
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years. See Satterwhite v. Smith, 744 F.2d 1380, 1382 (9th Cir. 1984) (finding that
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evidence a black employee could not obtain promotion or gain access to training and
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advancement opportunities that white employees received was sufficient to support a
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claim of constructive discharge); Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th
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Cir. 1987) (an alleged pattern of discriminatory actions by an employer was sufficient to
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survive a motion for summary judgment).
Failure to State a Claim for Constructive Discharge.
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Plaintiff has alleged sufficient facts to show that a reasonable person in his
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position would have felt forced to quit because of intolerable working conditions.
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Defendant’s motion to dismiss the claim for constructive discharge will be denied.
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IT IS ORDERED:
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1.
Defendant’s motion to dismiss (Doc. 17) is denied.
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2.
Plaintiff’s request for leave to amend (Doc. 20) is denied as moot.
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Dated this 15th day of April, 2015.
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