Arizona Cases October 21, 2022: Loreto v. Ariz. Bd. of Regents

Case Description

1

REPORT AND RECOMMENDATION

HONORABLE D. THOMAS FERRARO, UNITED STATES MAGISTRATE JUDGE

Before the Court is Defendants' Motion to Dismiss for failure to state a claim. (Doc. 11.) This matter has been referred to United States Magistrate Judge D. Thomas Ferraro for report and recommendation. (Doc. 7.) As more fully set forth below, it is recommended that the District Court, after its independent review, grant the motion to dismiss and dismiss the Complaint with leave to amend.

COMPLAINT

In 2015, Plaintiff was a Ph.D. candidate for the University of Arizona (the University). (Doc. 1-5 ¶ 1.) The Arizona Board of Regents, a public corporate body, governs the University. (Doc. 11 at 1.) The Arizona Board of Regents is the proper defendant when someone wishes to bring suit against the University. Id. The University is a federal contractor and receives federal grants. (Doc. 1-5 ¶ 3.) In 2015, Plaintiff became an accounting assistant, under Defendant Denise Moynihan. Id. ¶¶ 4, 6. Defendant Moynihan required pre-approval for restroom breaks for the accounting assistant position, reportedly so the walk-up account window would be constantly staffed. Id. ¶ 7. In March

2

2020, the Covid-19 pandemic caused in-person service to cease. Id. ¶ 9. The restroom policy remained in effect. Id. ¶ 10.

In February 2021, Plaintiff underwent a tummy tuck surgery. Id. ¶ 11. Following her surgery, Plaintiff suffered severe incontinence and "persistent involuntary lymphatic fluid pubic drainage." Id. At some point, Plaintiff informed Defendant Moynihan of the surgery and the issues associated with its recovery. Id. ¶ 12. Plaintiff requested a temporary exemption from the restroom policy and permission to go on short walks. Id. Defendant Moynihan denied Plaintiff's request but promised to provide prompt approval of restroom breaks. Id. ¶ 14. According to Plaintiff, Defendant Moynihan "actively obstructed and delayed approval of restroom breaks." Id. This caused Plaintiff to regularly urinate and discharge lymphatic fluid into a post-surgical undergarment. Id. ¶ 15.

Plaintiff brought this issue to the attention of Defendant Moynihan's supervisor Richard Bergeron and Kevin Mack, a human resource specialist. Id. ¶ 16. Plaintiff alleges she suffered severe physical pain, embarrassment, humiliation, and discomfort because her requests were not approved. Id. ¶ 18. On April 30, 2021, Plaintiff resigned. Id. ¶ 19. Plaintiff then applied for unemployment compensation. Id. On September 26, 2021, Defendant Moynihan and Bergeron testified at an unemployment compensation hearing. Id. ¶¶ 22-23. They both attested that there had been no pre-approval policy for restroom breaks and that Plaintiff had never requested an accommodation. Id. In November 2021, Plaintiff took a position as an accountant with the University of Arizona's Bursar's Office. Id. ¶ 24.

Plaintiff asserts she "exhausted her administrative remedies by timely filing complaints with the Arizona Attorney General's Office and the Equal Employment Opportunity Commission." Id. ¶ 26. On May 2, 2022, she initiated this action in the Superior Court of Arizona in and for the County of Pima. Id. at 2. She brings four causes of action. Id. ¶¶ 27-34. Under the first cause of action, Plaintiff alleges "Disability Discrimination and Reprisal." Id. at 6. Plaintiff invokes the Americans with Disability Act (ADA), § 504 of the Rehabilitation Act, the Arizona Civil Rights Act (ACRA), and the

3

Arizona Employment Protection Act. Id. ¶ 27. The second cause of action accuses Defendants of "Denial of Civil Rights Under Color of Law." Id. at 7. Plaintiff asserts Defendants breached her statutory right to be free from disability discrimination and reprisal and to have a reasonable accommodation. Id. ¶¶ 31-32. Plaintiff declares Defendants violated 42 U.S.C. §§ 1981a, and 1983. Id. Further, Plaintiff invokes Bivens v. Six Unknown Named Agents , 403 U.S. 388 (1971), against Defendant Moynihan. Id. ¶ 32. Plaintiff requests Declaratory Relief in the third cause of action. Id. at 7-8. In the fourth cause of action, Plaintiff requests injunctive relief. Id. at 8. On June 8, 2022, this matter was removed to this Court. (Doc. 1.) Defendants move to dismiss the Complaint, arguing Plaintiff failed to state a claim. (Doc. 11.)

LEGAL STANDARD

A motion brought under Rule 12(b)(6), Fed. R. Civ. P., tests the legal sufficiency of a claim. Navarro v. Block , 250 F.3d 729, 732 (9th Cir. 2001) "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). "[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.'" Twombly , 550 U.S. at 556 (quoting Scheuer v. Rhodes , 416 U.S. 232, 236 (1974)). A complaint must have sufficient factual content such that a court can draw the "reasonable inference" that the defendant is liable for the alleged misconduct; this requires "more than a sheer possibility that a defendant has acted unlawfully." Iqbal , 556 U.S. at 678. "On a motion to dismiss, all well-pleaded allegations of material fact are taken as true and construed in a light most favorable to the non-moving party," Wyler Summit P'ship v. Turner Broad. Sys., Inc. , 135 F.3d 658, 661 (9th Cir. 1998), and all reasonable inferences are drawn in favor of the nonmoving party, see Doe v. United States , 419 F.3d 1058, 1062 (9th Cir. 2005). However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to state a claim. Iqbal , 556 U.S. at 678, 681.

4

Defendants request the Court take judicial notice of the charge of discrimination and the dismissal of the notice. (Doc. 11 at 3-4.) "In ruling on a 12(b)(6) motion, a court may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Swartz v. KPMG LLP , 476 F.3d 756, 763 (9th Cir. 2007). Nonetheless, courts may take judicial notice of public records. Reyn's Pasta Bella, LLC v. Visa USA, Inc. , 442 F.3d 741, 746 n.6 (9th Cir. 2006). Plaintiff did not contest the authenticity or accuracy of the documents. (Doc. 12.) The Court agrees with Defendants that these are public records and will take judicial notice of them.

ANALYSIS

Failure to Comply with Local Rules

The time to respond to a motion to dismiss for failure to state a claim is fourteen (14) days, unless "one or more of the grounds asserted in a motion to dismiss is a lack of personal or subject matter jurisdiction." LRCiv 7.2(c), 12.1(b), App'x A. Non-compliance with Local Rule of Civil Procedure 7.2 "may be deemed a consent to the denial or granting of the motion and the Court may dispose of the motion summarily." LRCiv 7.2(i). Plaintiff argues some of the claims raised in the motion to dismiss were jurisdictional-resulting in the longer response deadline. (Doc. 16 at 2.) The Court finds Plaintiff's argument to be inaccurate.

Courts have held that whether a plaintiff exhausted their administrative remedies was a jurisdictional issue. See Leong v. Potter , 347 F.3d 1117, 1122 (9th Cir. 2003). However, the Court finds that failure to exhaust administrative remedies is not jurisdictional in this matter. Cf. Fort Bend County v. Davis , 139 S.Ct. 1843, 1846 (2019) (holding charge-filing instructions are not jurisdictional in Title VII claim, where ADA requirements originate). Plaintiff also argues the question of individual liability under § 1983 is jurisdictional. (Doc. 16 at 2.) Plaintiff then cites to cases determining whether sovereign immunity applies or whether sufficient facts were alleged. Id. (citing Williams v. Clark Cnty. Pub. Adm'r , No. 2:09-cv-00810-RCJ-LRL, 2010 U.S. Dist. LEXIS 115008, at *11 (D. Nev. Oct. 26, 2010); Boldt v. Myers , No. CV. 07-8-PK, 2007 U.S. Dist. LEXIS 103445, at *13 (D. Or. July 6, 2007);

5

Garcia v. Marshal , No. C 94-3282 TEH, 1994 U.S. Dist. LEXIS 15910, at *12-13 (N.D. Cal. Oct. 28, 1994)). This misunderstands Defendants' argument as to the § 1983 claim against Defendant Moynihan. Defendants argue the comprehensive nature of the ADA and the Rehabilitation Act prevent a § 1983 claim to vindicate the same rights. (Doc. 11 at 15-16.) This is appropriate for a motion for failure to state a claim. See Buckley v. City of Redding , 66 F.3d 188, 190 (9th Cir. 1995) (considering similar argument on appeal after district court granted 12(b)(6) motion). Accordingly, the response deadline was fourteen days after the motion to dismiss-August 25, 2022. Plaintiff responded on September 12, 2022. (Doc. 12.) Her response was untimely.

Nonetheless, the Court recommends the Complaint not be dismissed on this ground. Plaintiff's attorneys should endeavor to become familiar with the Local Rules.

Claim for Injunctive Relief and Declaratory Judgment

Defendants argue the "Third Cause of Action" and the "Fourth Cause of Action" should be dismissed because they are remedies-not independent claims or causes of action. (Doc. 11 at 5.) Plaintiff did not respond to this argument. ( See Doc. 12.)

Injunctions and declaratory judgments are generally remedies-not independent causes of action. See 28 U.S.C. § 2201 (titled "Creation of Remedy"); Sec. & Exch. Comm'n v. Church-Koegel , No. CV 20-8480 FMO (JCx), 2021 WL 6104157, at *1 (C.D. Cal. Sept. 29, 2021) (stating injunctive relief is not independent claim); Lorona v. Ariz. Summit Law Sch., LLC , 151 F.Supp.3d 978, 997 (D. Ariz. 2015) (concluding declaratory and injunctive relief are remedies-not independent causes of action).

Here, Plaintiff's "Third Cause of Action" is labeled declaratory relief. (Doc. 1-5 at 7.) Plaintiff's "Fourth Cause of Action" is labeled injunctive relief. Id. at 8. Consequently, the third and fourth causes of action in the Complaint should be dismissed as they are not independent causes of actions. These are, instead, remedies. Plaintiff may still pursue these remedies where appropriate.

6

Rule 8 Pleadings Standard

Defendants contend Plaintiff combined multiple difference claims and legal bases into the first and second "cause of action." (Doc. 11 at 6-7.) Defendants assert the claims should be separated into two time periods: employment and non-employment. Id. Plaintiff contends she alleges a continuing violation, such that the pre- and post-employment acts of discrimination and reprisal are a single violation. (Doc. 12 at 6.)

Rule 8(d)(1), Fed. R. Civ. P., requires that "[e]ach allegation must be simple, concise, and direct." Further, "[a] party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones." Fed.R.Civ.P. 8(d)(2). Moreover, Rule 10(b), Fed. R. Civ. P., states that parties "must state [their] claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances."

The continuing-violation doctrine is a mix of different ideas, but it generally functions to allow plaintiffs relief for events outside the limitation period. Bird v. Dep't of Hum. Servs. , 935 F.3d 738, 746 (9th Cir. 2019). The Supreme Court limited the continuing-violation doctrine, Nat'l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 115 (2002); after which, "little remains." Bird , 935 F.3d at 748. There is a limited exception for the hostile work environment and the possibility of a class-wide pattern-or-practice claim. Id. Further, the Supreme Court provided examples of discrete acts: "termination, failure to promote, denial of transfer, or refusal to hire." Morgan , 536 U.S. at 114. These are actions that "occurred" on the day they "happened." Id. at 110.

Here, Plaintiff alleges that sometime between February 2021 and April 30, 2021, she requested and was denied a reasonable accommodation associated with her surgery recovery. (Doc. 1-5 ¶¶ 11-12, 14, 16, 18-19.) Then according to Plaintiff, she was constructively discharged and forced to resign on April 30, 2021. Id. ¶¶ 18-19. Thereafter, she filed for unemployment benefits. Id. ¶ 19. On September 26, 2021, Defendant Moynihan and Bergeron testified at an unemployment compensation hearing. Id. ¶¶ 22-23.

The first cause of action is for "Disability Discrimination and Reprisal."

7

(Doc. 1-5 at 6.) This claim covers the denial of accommodations, constructive discharge, and contesting her unemployment claim. Id. ¶¶ 27-30. This presents claims under the ADA, the Rehabilitation Act, the ACRA, and the Arizona Employment Protection Act, without further explanation. Id. ¶ 27. In the second cause of action, Plaintiff alleges a "Denial of Civil Rights Under Color of Law." Id. at 7. This invokes § 1983 and Bivens -again without any explanation. Id. ¶¶ 31-32.

Plaintiff argues she alleges a continuing violation and that because the unemployment benefits are still pending the discrimination lasts until today. (Doc. 12 at 2-3.) However, Plaintiff actually alleges three discrete actions of discrimination: denial of accommodation, constructive discharge, and false testimony in retaliation at the unemployment compensation hearing. (Doc. 1-5 ¶¶ 13, 18-19, 21-23.) None of these allegations fit with the narrow application of the continuing-violations doctrine as it stands today. See Bird , 935 F.3d at 748. They all occurred on the day they happened and seem to fit the examples the Supreme Court listed as discrete actions. See Morgan , 536 U.S. at 114. As such, Plaintiff's argument fails, resulting in multiple claims in the first and second causes of action in violation of the civil rules. Fed.R.Civ.P. 8(d)(2), 10(b). Thus, these causes of actions should be dismissed with leave to amend.

Because this would dismiss the entire Complaint, the Court declines to consider the remaining issues raised by Defendants. Defendants raise many other arguments, such as the timeliness of the claims, the applicability of § 1983 and Bivens , and sufficiency of allegations. (Doc. 11.) While the Court is not reaching the merits of those arguments at this time, Plaintiff would be well advised to consider them when amending the Complaint because many of the arguments appear to have merit.

ADVISAL FOR LEAVE TO AMEND

If the District Court provides Plaintiff with leave to amend, Plaintiff must clearly designate on the face of the document that it is the "First Amended Complaint." The First Amended Complaint must be retyped or rewritten in its entirety and may not incorporate any part of the original Complaint by reference. Plaintiff may include only one claim per

8

count.

The First Amended Complaint will supersede the original Complaint. Ferdik v. Bonzelet , 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will treat the original Complaint as nonexistent. Id. Any cause of action that was raised in the original Complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in the First Amended Complaint. Lacey v. Maricopa County , 693 F.3d 896, 928 (9th Cir. 2012).

RECOMMENDATION

For the foregoing reasons, it is RECOMMENDED that the district court, after its independent review, grant Defendants' motion to dismiss (Doc. 11) and dismiss the Complaint with leave to amend.

Pursuant to Rule 72(b)(2), Fed. R. Civ. P., any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived.