Tanooryan v. Grant

Filing 23

ORDER GRANTING 16 Motion to Dismiss. Plaintiff's 1 Complaint is DISMISSED with leave to amend. Plaintiff may file a First Amended Complaint within 30 days of the date of this Order. Failure to comply will result in, without further notice, a judgment dismissing this case with prejudice. Signed by Senior Judge Raner C Collins on 4/2/19. (BAC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Mansooreh Tanooryan,

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Plaintiff,

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ORDER

v.

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No. CV-18-00293-TUC-RCC

Ruth Grant, et al.,

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Defendants.

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Pending before the Court is Defendant Pima County’s Motion to Dismiss.1 (Doc.

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16.) Plaintiff has filed a Response (Doc. 18) and Defendant a Reply (Doc. 19). The Court

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will grant the Motion to Dismiss and allow Plaintiff leave to amend.
I.

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STANDARD OF REVIEW

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A motion under 12(b)(6) must contain a “short and plain statement of the claim

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showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). While Rule 8 does not

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require detailed factual allegations, “it demands more than an unadorned, the defendant

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unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[A]

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complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief

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that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

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570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged.” Id. The complaint must contain more than “a statement of facts that merely creates

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Plaintiff’s claims against Ruth Grant were dropped in her amended complaints. See Docs.
7-8, 14.) Therefore, Pima County is the only remaining Defendant in this matter.

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a suspicion [of] a legally cognizable right of action.” Bell Atlantic Corp., 550 U.S. at 555.

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Furthermore, “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Id.

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“Determining whether a complaint states a plausible claim for relief [is] . . . a

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context–specific task that requires the reviewing court to draw on its judicial experience

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and common sense.” Iqbal, 556 U.S. at 679. So, although a plaintiff’s specific factual

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allegations may be consistent with a constitutional claim, a court must assess whether there

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are other “more likely explanations” for a defendant’s conduct. Id. at 681.

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If the plaintiff “fails to state a claim on which relief may be granted,” the District

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Court must dismiss the claim. 28 U.S.C. §1915(e)(2)(B)(ii). But, a “complaint [filed by a

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pro se litigant] ‘must be held to less stringent standards than formal pleadings drafted by

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lawyers.’” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (quoting Erickson v. Pardus,

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551 U.S. 89, 94 (2007) (per curiam)). While dismissal is appropriate if the complaint’s

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deficiencies cannot be cured by amendment, if the pleading can be remedied through the

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addition of facts, the claimant should be granted an opportunity to amend a complaint prior

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to final dismissal. Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000).

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II.

DISCUSSION

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Plaintiff filed a Complaint on June 11, 2018. (Doc. 1.) Prior to service of the

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Complaint, Plaintiff filed a First (Doc. 7) and Second Amended Complaint (Doc. 8). Then,

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before Defendant could file an answer, Plaintiff filed a Third Amended Complaint. (Doc.

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14.) Petitioner has therefore had several opportunities to add additional facts and streamline

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her discrimination claims.

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Plaintiff’s Third Amended Complaint raises three grounds for relief. First, Plaintiff

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alleges discrimination under Title II of the Civil Rights Act of 1964, as amended, 42 U.S.C.

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§ 2000e et. seq. (Doc. 14 at 1-4.) Second, Plaintiff states Defendants abused authority and

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violated Plaintiff’s right to privacy. Id. at 4-5. Third, Plaintiff states she suffered from

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adverse employment action and national origin. Id. at 5-9.

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As a preliminary matter, Plaintiff’s second and third grounds fail to state a claim

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entitling her to relief. While an adverse employment action is an element of an employment

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discrimination claim, it is not in and of itself a cause of action. In addition, the abuse of

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authority and privacy violation allegations do not raise a cognizable legal theory and are

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therefore subject to dismissal. See e.g., Balistreri v. Pacifica Police Dept., 901 F.2d 696,

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699 (9th Cir. 1990).

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Plaintiff’s claim alleges while working for the Oro Valley Public Library, an

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American-born individual, pseudonym Mr. A., was transferred to the library and received

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benefits not bestowed upon Plaintiff. (Doc. 14 at 10-11.) These benefits included: better

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choices for work shifts and immediate implementation of Mr. A.’s suggestions to improve

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programs at the library. Id. at ¶¶ 11-13, 15. Defendant Williams also put pressure on

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Plaintiff to emulate Mr. A. by requesting Plaintiff change her method of working with

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students, asking her to attend instructor meetings, and expecting her to adjust her work

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schedule. Id. at ¶ 16.

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Plaintiff claims that Ms. Grant terminated her because she “preferred to work with

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an American-born program instructor rather than Plaintiff.” Id. at ¶43. She contends that

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she should not have been terminated through her personal email because it was

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embarrassing, and doing so showed discriminatory intent. (Doc. 18 at ¶ 20.) She asserts the

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proof of Defendants’ discriminatory motive lies in the fact that Ms. Grant exited a room to

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discuss Plaintiff’s failure to attend a meeting within hearing of others, requesting Plaintiff

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explain her personal reasons for missing the meeting, and dismissing her despite the

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emotional stress it caused Plaintiff. (Doc. 14 at ¶¶ 26, 32, 40, 42-43.) Plaintiff connects her

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termination with discrimination because, “Other patrons complained about Mrs. Grant’s

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and other employees’ behavior toward non-white Americans that either was shared with

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Plaintiff or she witnessed them at work. It seemed since Oro Valley branch is in an upper

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middle–class area, their employees were less tolerant toward immigrants” and because

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“[Defendants] wanted to hang on with Plaintiff until they found an American instructor,

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and then dismiss her again, same story. That is the reason why more than 85% of Pima

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County Library employees are white.” Id. at ¶¶ 41, 49. Despite these allegations, Plaintiff

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simultaneously concedes that her employment was terminated because she was not

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available to work the hours that Defendant needed. Id. at ¶35.

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Plaintiff’s claim that her termination was based on discrimination is conclusory and

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insufficient to survive a motion to dismiss. To sufficiently plead discrimination based on

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national origin, a plaintiff must show discriminatory intent. See Goodwin v. Hunt Wesson,

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Inc., 150 F.3d 1217, 1220 (9th Cir. 1993). When no direct evidence of discriminatory intent

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exists, a plaintiff may state a prima facie case discrimination by alleging plaintiff (1)

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belongs to a protected class, (2) was able to adequately perform in her area of employment,

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(3) was subjected to an adverse employment action, and (4) other similarly–situated

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individuals were treated more favorably. See Chuang v. Univ. of Cal. Davis, Bd. of

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Trustees, 225 F.3d 1115, 1123 (9th Cir. 2000).

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Plaintiff has provided no direct evidence that her termination or any adverse action

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she suffered was based on her national origin. Furthermore, her general statements that

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employees from the Pima County Public Library are primarily white and that some

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employees appeared “less tolerant toward immigrants” cannot lead the Court to conclude

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that any action by Defendants constituted discrimination or retaliation. She has also failed

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to show that similarly situated individuals were treated differently; her admission that Mr.

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A. was willing to work hours she was not belies her allegation that he was similarly-

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situated. Plaintiff claims that the “work incidents are examples of how Plaintiff was judged

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at work based on her appearance,” (Doc. 18 at 1) but the Court cannot discern how this is

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so, and the Complaint pleads no facts about her appearance and how it connects to some

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adverse employment action. Furthermore, the Court cannot connect any conceivably

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discriminatory remarks towards refugee students to an employment action against Plaintiff.

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There are simply no facts allowing the Court to make a “reasonable inference that the

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defendant is liable for the misconduct alleged.” See Iqbal, 556 U.S. at 678. Therefore, the

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Court will dismiss this matter.

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However, because the pleading of additional facts may resolve the deficiencies in
the Complaint, the Court will give Plaintiff leave to amend.

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I.

LEAVE TO AMEND

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If Plaintiff chooses to file an amended complaint, Plaintiff must write short, plain

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statements telling the Court: (1) the right Plaintiff believes was violated; (2) the name of

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the Defendant who violated the right; (3) exactly what that Defendant did or failed to do;

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(4) how the action or inaction of that Defendant is connected to the violation of Plaintiff’s

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rights; and (5) what specific injury Plaintiff suffered because of that Defendant’s conduct.

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See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). If Plaintiff fails to affirmatively

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link the conduct of each named Defendant with the specific injury suffered by Plaintiff, the

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allegations against that Defendant will be dismissed for failure to state a claim. Conclusory

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allegations that a Defendant has violated a right are not acceptable and will be dismissed.

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Plaintiff shall familiarize herself with the Federal Rules of Civil Procedure and

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Local Rules for the District of Arizona, both of which can be found on the Court’s web site

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at www.azd.uscourts.gov. Plaintiff is advised that a Handbook for Self-Represented

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Litigants is available on the Court’s website at: http://www.azd.uscourts.gov/handbook-

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self-represented-litigants. In addition, Step Up to Justice offers a free, advice-only clinic

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for self-represented civil litigants on Thursdays from 1:30 p.m. to 3:30 p.m. If Plaintiff

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wishes to schedule a clinic appointment, she should contact the courthouse librarian, Mary

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Ann O’Neil, at MaryAnn_O’[e-mail].

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Accordingly, IT IS ORDERED:

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1. Defendant’s Motion to Dismiss is GRANTED. (Doc. 16.)

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2. Plaintiff’s Complaint is DISMISSED with leave to amend.

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3. Plaintiff may file a First Amended Complaint within thirty (30) days of the date of

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this Order. If Plaintiff fails to file an amended complaint within thirty (30) days of

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the date of this Order, the Clerk of Court shall, without further notice, enter a

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judgment dismissing this case with prejudice.

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Dated this 2nd day of April, 2019.

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