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).

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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-

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