Shirley et al v. Integrated Systems Improvement Services Inc. et al
Filing
25
*ORDER granting in part and denying in part 15 Motion for Judgment on the Pleadings; Counts 2 and 3 are dismissed with Prejudice. Denying as moot 19 Motion to Strike. Defendant shall file an aswer with 20 days of the date of this Order filed. Signed by Judge Jennifer G Zipps on 08/31/12.(LMF) *Modified to add with opinion on 8/31/2012 (LMF).
1
WO
2
3
4
5
IN THE UNITED STATES DISTRICT COURT
6
FOR THE DISTRICT OF ARIZONA
7
8
Russell Shirley and Donna M. Shirley,
9
Plaintiffs,
10
ORDER
vs.
11
No. CV-11-852-TUC-JGZ
Integrated Systems Improvement Services,
Inc.,
Defendant.
12
13
14
Pending before the Court is a Motion for Judgment on the Pleadings filed by
15
Defendant Integrated Systems Improvement Services, Inc. (“ISIS”) on June 18, 2012.
16
(Doc. 15.) Plaintiffs Russell Shirley (“Shirley”) and Donna M. Shirley1 filed a response
17
on July 12, 2012 and ISIS timely replied. (Docs. 18, 20.) ISIS moves the court for final
18
judgment on the pleadings and dismissal with prejudice of the pending action. For the
19
reasons stated herein, the Court will grant the Motion in part.
20
Also pending before the Court is a Motion to Strike Exhibits to Response to
21
Motion for Judgment on the Pleadings filed by ISIS on July 23, 2012. (Doc. 19.)
22
Plaintiffs filed a response to the Motion on August 10, 2012 and Defendant timely
23
replied. (Docs. 23, 24.) For the reasons stated herein, the Court will deny the Motion as
24
moot.
25
26
1
27
28
Although Donna M. Shirley is named as a Plaintiff in this action, she is not a party to
any of the factual allegations and has been named solely because she is the wife of Russell
Shirley and has an alleged community property interest in the litigation. Accordingly, the Court
refers to Plaintiff Russell Shirley as “Shirley” in this Order.
FACTUAL AND PROCEDURAL BACKGROUND
1
2
3
4
5
6
7
8
9
10
11
12
13
The facts alleged in Plaintiff’s Complaint are as follows:
Shirley was hired by ISIS on or about August 8, 2008 for an instructor position.
At the time of hire, Shirley informed ISIS that he had a military-service related disability
that resulted in sleep apnea and insomnia. ISIS did not express any concerns related to
Shirley’s alleged disability. During his employment at ISIS, Shirley was considered to be
a good employee and an outstanding instructor; he was nominated for employee
performance awards in August and September, 2010.
As a New Years’ resolution for 2011, Shirley decided to stop smoking. As a
result, he began to experience increased insomnia. On January 10, 2011, an ISIS team
leader discovered Shirley asleep at work. The team leader woke him up and informed
him that he had also fallen asleep at work on January 7, 2011; Shirley was not aware that
he had fallen asleep at work on either occasion. On or about January 12, 2011, Shirley
was terminated.
14
Shirley filed a discrimination charge against ISIS with the United States Equal
15
Employment Opportunity Commission. On September 28, 2011, the EEOC dismissed
16
Shirley’s case and issued a Right to Sue letter. On December 28, 2011, Plaintiffs filed
17
the instant action in federal court. (Doc. 1.) Plaintiff’s Complaint alleged four causes of
18
action against ISIS: (1) violation of the Americans with Disabilities Act, 42 U.S.C. §
19
12101 et seq. (“ADA”); (2) “bad cause termination”; (3) defamation; and (4) intentional
20
infliction of emotional distress (“IIED”). (Id.) On April 27, 2012, ISIS moved to dismiss
21
pursuant to Rules 12(b)(1) and 12(b)(6), Fed. R. Civ. P. (Doc. 9.) In response to the
22
Motion to Dismiss, Plaintiffs filed an Amended Complaint alleging three causes of action
23
against ISIS: Count 1, violation of the ADA; Count 2, defamation; and Count 3, IIED.
24
(Doc. 12.) The pending Motion for Judgment on the Pleadings followed.
25
STANDARD OF REVIEW
26
“Rules 12(b)(6) and 12(c) are substantially identical.” Strigliabotti v. Franklin
27
Resources, Inc., 398 F.Supp.2d 1094, 1097 (N.D. Cal. 2005). Rule 12(c) motions for
28
judgment on the pleadings are therefore reviewed under the standard applicable to a Rule
-2-
1
2
3
4
5
6
7
8
9
10
11
12
12(b)(6) motion to dismiss for failure to state a claim. See Aldabe v. Aldabe, 616 F.2d
1089, 1093 (9th Cir.1980). In ruling on a Rule 12(c) motion, the Court must “determine
whether the facts alleged in the complaint, to be taken for [the purposes of a Rule 12(c)
motion] as true, entitle the plaintiff to a legal remedy.” Strigliabotti, 398 F.Supp.2d at
1097. “If the complaint fails to articulate a legally sufficient claim, the complaint should
be dismissed or judgment granted on the pleadings.” Id. A Rule 12(c) motion is thus
properly granted when, taking all the allegations in the pleading as true, the moving party
is entitled to judgment as a matter of law. Knappenberger v. City of Phoenix, 566 F.3d
936, 939 (9th Cir. 2009). As with a motion to dismiss, the analysis is generally limited to
the facts as stated in the complaint, but the “court may [also] consider evidence on which
the complaint ‘necessarily relies' if: (1) the complaint refers to the document; (2) the
document is central to the plaintiff's claim; and (3) no party questions the authenticity of
the copy attached to the ... motion.” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir.2006).
13
ANALYSIS
14
In its motion for judgment on the pleadings, ISIS contends that all 3 counts of
15
Plaintiffs’ Amended Complaint are deficient as a matter of law. In addition, ISIS moves
16
to strike exhibits 1, 2 and 3 from Plaintiffs’ Response to Defendant’s Motion for
17
Judgment on the Pleadings on the ground that the exhibits are irrelevant, hearsay and not
18
authenticated.
19
1.
Motion for Judgment on the Pleadings
20
a.
21
In order to state a claim under the ADA, Plaintiffs must allege that: (1) Shirley is
22
disabled within the meaning of the ADA; (2) Shirley is a qualified individual able to
23
perform the essential functions of the job with reasonable accommodation; and (3)
24
Shirley suffered an adverse employment action because of his disability. Allen v. Pacific
25
Bell, 348 F.3d 1113, 1114 (9th Cir. 2003) (citing Nunes v. Wal-Mart Stores, Inc., 164 F.3d
26
1243, 1246 (9th Cir.1999)). ISIS contends that Plaintiffs have failed to state an ADA
27
claim because Shirley is not disabled within the meaning of the ADA.
28
Plaintiffs have stated an ADA claim
With respect to the first element, the ADA defines “disability” as: (A) a physical
-3-
1
2
3
4
5
6
7
8
9
10
11
12
13
or mental impairment that substantially limits one or more of the major life activities of
such individual; (B) a record of such an impairment; or (C) being regarded as having
such an impairment. 42 U.S.C. § 12102(2) (1994). The phrase “major life activities”
includes, but is not limited to “caring for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking, communicating, interacting with
others, and working.” 29 CFR § 1630.2(i)(1)(i). Applicable regulations further instruct
that “the term ‘substantially limits’ shall be construed broadly in favor of expansive
coverage, to the maximum extent permitted by the terms of the ADA. ‘Substantially
limits’ is not meant to be a demanding standard.” 29 CFR § 1630.2(j)(1)(i).
The Amended Complaint is flawed in that it does not specifically identify
Shirley’s disability, instead alleging generally that Shirley suffers from “a military
service related disability.”
(Doc. 12, pg. 2.)
However, the Amended Complaint
identifies two major symptoms of the disability: sleep apnea and “resulting insomnia.”
14
(Doc. 12, pg. 2.) The Amended Complaint further alleges that sleep apnea “can cause an
15
individual to feel very sleepy during the day … and under certain circumstances to fall
16
asleep during daytime hours.” (Doc. 12, pg. 5.) According to the Amended Complaint,
17
Shirley used nicotine as a stimulant during the day to stave off daytime sleepiness caused
18
by insomnia. (Doc. 12, pgs. 5-6.) When Shirley stopped smoking, his sleep apnea and
19
insomnia caused him to fall asleep at work. (Doc. 12, pgs. 6-7.)
20
allegations, the Court concludes that Plaintiffs have met the pleading requirements of
21
Rules 8 and 12, Fed. R. Civ. P. When the facts alleged in the Amended Complaint are
22
taken as true and viewed in the light most favorable to Plaintiffs, it appears that Shirley’s
23
sleep apnea and insomnia constitute impairments that substantially limit the major life
24
activity of sleeping. The conditions were severe enough that Shirley self-medicated with
25
nicotine and fell asleep at work when not self-medicating. Given the liberal standard of
26
review on a Rule 12(c) motion for judgment on the pleadings and the broad statutory
27
construction called for by the regulations, the Court declines to enter judgment against
28
Plaintiffs on Count 1 at this stage in the proceedings. See Phillips v. PacifiCorp, 304
-4-
Based on these
1
2
3
4
5
6
7
8
9
10
11
12
13
Fed.Appx. 527, 529 (9th Cir. 2008) (“To establish a substantial limitation on the major
life activity of sleeping for the purpose of defeating summary judgment, all that is
required in this case is [plaintiff’s] testimony alleging great difficulty sleeping at night.”);
Kolecyck-Yap v. MCI Worldcom, Inc., 2001 WL 245531 (N.D. Ill. 2001) (collecting cases
discussing circumstances in which sleep apnea substantially limits the major life activity
of sleeping). Accordingly, Defendant’s Motion is denied as to Count 1.
b.
Plaintiffs have failed to state a claim for defamation
In order to state a claim for defamation under Arizona law, Plaintiffs must allege:
(1) publication of a false and defamatory communication; (2) the publisher’s knowledge
of falsity, reckless disregard of the truth or negligence in ascertaining the truth; and (3)
harm to the plaintiff. See Peagler v. Phoenix Newspapers, Inc., 560 P.2d 1216, 1222
(1977) (adopting Restatement (Second) of Torts § 580B (1975)). “To be defamatory, a
publication must be false and must bring the defamed person into disrepute, contempt, or
ridicule, or must impeach plaintiff's honesty, integrity, virtue, or reputation.” Turner v.
14
Devlin, 848 P.2d 286, 288–89 (1993) (quoting Godbehere v. Phoenix Newspapers, Inc.,
15
783 P.2d 781, 787 (1989)).
16
Plaintiffs’ Amended Complaint alleges that ISIS knew that Shirley suffered from
17
sleep apnea but nevertheless terminated him for falling asleep at work, in contradiction to
18
previous assurances by ISIS that it would accommodate Shirley’s alleged disability.
19
(Doc. 12, pgs. 10-11.)
20
termination, employees of the Defendant strongly indicated that Plaintiff’s falling asleep
21
was caused by irresponsible behavior or by being lazy, ignoring the fact that falling
22
asleep was induced by his sleep apnea.” (Id. at pg. 11.) Plaintiffs claim that the “damage
23
to [Shirley’s] reputation had a serious and devastating economic impact” on Shirley and
24
his family. (Id.)
25
First, Plaintiffs have not alleged that the “employees of the Defendant” knew that their
26
statements were false. Second, Plaintiffs have not alleged publication, because it does
27
not appear that any third party was aware that “employees … strongly indicated that
28
[Shirley was] irresponsible … [or] lazy.” A plain reading of the Amended Complaint
According to Plaintiffs, “in the events leading up to the
These allegations are not sufficient to state a claim for defamation.
-5-
1
2
3
4
5
6
7
8
9
10
11
12
13
suggests that these comments were made to Shirley himself. See Dube v. Likins, 167
P.3d 93, 104 (Ariz. App. 2007) (“Publication for defamation purposes is communication
to a third party.”). Finally, the Court notes that Plaintiffs’ Response to the Motion for
Judgment on the Pleadings failed to address ISIS’s contention that Plaintiffs’ defamation
claim was without merit. Pursuant to LRCiv 7.2(i), such failure to respond may be
deemed a consent to the relief requested. See Puzz v. Chase Home Finance, LLC, 763
F.Supp.2d 1116, 1120-1121 (D. Ariz. 2011). Thus, it appears that Plaintiffs agree with
ISIS’s assertion that the Plaintiffs’ defamation claim has not been properly pled and
should be dismissed. Accordingly, ISIS is entitled to dismissal of Count 2.
c.
Plaintiffs have failed to state a claim for IIED
In order to state a claim for IIED, Plaintiffs must allege that ISIS’s conduct was
“extreme” and “outrageous;” that ISIS either intended to cause emotional distress or
recklessly disregarded the near certainty that such distress would result from its conduct;
and that severe emotional distress in fact occurred. See Mintz v. Bell Atlantic Systems
14
Leasing Intern., Inc., 905 P.2d 559, 562-63 (Ariz. App. 1995). Only when reasonable
15
minds could differ in determining whether conduct is sufficiently extreme or outrageous
16
does the issue go to the jury. Id. at 563. “[I]t is extremely rare to find conduct in the
17
employment context that will rise to the level of outrageousness necessary to provide a
18
basis for recovery for the tort of intentional infliction of emotional distress.” Id. (citing
19
Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir.1988)).
20
Plaintiffs’ Amended Complaint fails to allege conduct that reaches the high bar of
21
“extreme” and “outrageous.” Plaintiffs allege that ISIS terminated Shirley without giving
22
him an opportunity to obtain medical treatment for the sleep apnea issues that were
23
causing him to fall asleep at work. (Doc. 12.)
24
outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
25
decency, and to be regarded as atrocious and utterly intolerable in a civilized
26
community.” Johnson v. McDonald, 13 P.3d 1075, 1080–81 (Ariz.App.1999). The mere
27
act of termination, even if done for an unjust or discriminatory reason, does not support
28
an IIED claim. See, e.g., Castle v. Eurofresh, Inc., 2010 WL 797138, *9 (D. Ariz. 2010);
-6-
This conduct, even if true, is not “so
1
2
3
4
5
6
7
see also Nelson v. Phoenix Resort Corp., 888 P.2d 1375, 1387 (Ariz. App. 1994) (method
of termination did not give rise to IIED claim where employee was called to work in the
middle of the night and then escorted out by security teams in the presence of the media).
Furthermore, the Court notes that Plaintiffs failed to respond to ISIS’s contention that
their IIED claim was without merit; pursuant to LRCiv 7.2(i), the Court construes the
failure to respond as Plaintiffs’ consent to dismissal of the claim. Accordingly, ISIS is
entitled to dismissal of Count 3.
d.
8
9
10
11
12
13
Plaintiffs will be granted leave to amend as to Count 1
Plaintiffs contend that in the event the Court finds deficiencies in their Amended
Complaint, they should be granted leave to amend. Pursuant to Rule 15(a), Fed. R. Civ.
P., leave to amend “shall be freely given when justice so requires.” See Bowles v. Reade,
198 F.3d 752, 757 (9th Cir.1999). But a district court need not grant leave to amend
where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3)
produces an undue delay in litigation; or (4) is futile. Id. at 758; Jackson v. Bank of
14
Hawaii, 902 F.2d 1385, 1387 (9th Cir.1990). With respect to Counts 2 and 3, the Court
15
concludes that amendment would be futile.
16
Plaintiffs’ defamation claim lacked a factual basis and that the conduct alleged in support
17
of Plaintiffs’ IIED claim did not amount to “extreme and outrageous” conduct. (Doc. 9
18
pgs. 6-9.) The amendments made by Plaintiffs in response to ISIS’s Motion to Dismiss
19
did not correct these deficiencies. In addition, Plaintiffs have failed to avail themselves
20
of the opportunity to defend the validity of these claims by failing to respond to the
21
portions of ISIS’s Motion for Judgment on the Pleadings arguing that the claims were
22
without legal merit. Finally, it does not appear that Plaintiffs can amend their allegations
23
such that a claim for defamation or IIED would exist. Accordingly, Counts 2 and 3 are
24
dismissed with prejudice.
25
2.
ISIS’s Motion to Dismiss argued that
Motion to Strike
26
ISIS moves to strike exhibits 1, 2 and 3 from Plaintiffs’ Response to Defendant’s
27
Motion for Judgment on the Pleadings on the ground that the exhibits are irrelevant,
28
hearsay and not authenticated. Because the Court has resolved Defendant’s Motion for
-7-
1
2
Judgment on the Pleadings without reference to the challenged exhibits, the Court will
deny the Motion as moot.
CONCLUSION
3
4
5
6
7
8
9
10
11
For the foregoing reasons, IT IS ORDERED THAT:
1.
Defendant’s Motion for Judgment on the Pleadings (Doc. 15) is
GRANTED IN PART.
2.
Counts 2 and 3 are dismissed with prejudice from Plaintiff’s Amended
Complaint.
3.
Defendant’s Motion to Strike (Doc. 19) is DENIED AS MOOT.
4.
Defendant shall file an Answer within 20 days of the date this Order is
filed.
Dated this 31st day of August, 2012.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-8-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?