Al-Sammak v. Higher Ground A Resource Center

• Court: District Court, D. Arizona
• Decided: January 30, 2025
• Docket: 4:24-cv-00502
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Mohammed Al-Sammak, No. CV-24-00502-TUC-JCH (MSA) (Lead Case) 10 Plaintiff, Consolidated with: 11 v. No. CV-24-00538-TUC-JCH (MSA)

12 Higher Ground A Resource Center, REPORT AND RECOMMENDATION 13 Defendant. 14 15 In these consolidated cases, Plaintiff Mohammed Al-Sammak claims that Defendant 16 Higher Ground A Resource Center discriminated against him based on his Iraqi national 17 origin and Muslim faith. Before the Court are Plaintiff’s motion to remand and Defendant’s 18 partial motions to dismiss. As discussed below, the Court will recommend that Plaintiff’s 19 motion be denied, and that Defendant’s motions be granted. 20 Motion to Remand 21 In July 2024, Plaintiff filed a complaint against Defendant in Arizona superior court, 22 alleging several state-law claims and a single federal-law claim of retaliation in violation 23 of Title VII of the Civil Rights Act. (Doc. 1-3 (CC).)1 In November 2024, Defendant 24 removed the case to this Court on the ground that it has original subject-matter jurisdiction 25 over that federal-law claim. (Doc. 1 (CC).) Plaintiff now moves for a remand, arguing that 26 his reference to Title VII was accidental and that the Court lacks jurisdiction once the 27 reference is disregarded. He also argues that Defendant’s notice of removal is defective

28 1 In this report, citations to the lead case are indicated with “LC.” Citations to the consolidated case are indicated with “CC.” 1 since it is not accompanied by a state-court order of dismissal. 2 These arguments are not persuasive. Removal based on federal-question jurisdiction 3 is proper whenever “a federal question is presented on the face of the plaintiff’s properly 4 pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). There is a 5 federal retaliation claim presented on the face of Plaintiff’s complaint, so removal was 6 proper. It does not matter that the claim was included accidentally. Huffman v. Lindgren, 7 81 F.4th 1016, 1019–20 (9th Cir. 2023) (finding removal proper based on the complaint’s 8 inclusion of federal-law claims, despite the plaintiff’s assertion “that he never intended to 9 include a federal claim”). And there is no requirement that a removing defendant obtain a 10 state-court order of dismissal before initiating a removal. See 28 U.S.C. § 1446. 11 Therefore, the Court will recommend that Plaintiff’s motion to remand be denied. 12 Motions to Dismiss 13 Defendant moves to dismiss several of Plaintiff’s claims under Federal Rule of Civil 14 Procedure 12(b)(6). The Court finds that the motions should be granted. 15 I. Legal Standard 16 A defendant may move for dismissal of a complaint on the ground that it “fail[s] to 17 state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a Rule 18 12(b)(6) motion, the “complaint must contain sufficient factual matter, accepted as true, to 19 ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 20 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This standard does 21 not impose a “probability requirement,” but it “asks for more than a sheer possibility that 22 a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). Mere “labels and 23 conclusions” or “a formulaic recitation of the elements of a cause of action” are not enough. 24 Twombly, 550 U.S. at 555. 25 II. Factual Allegations2 26 Defendant is a private organization that works with local schools to connect students 27 and their families to public services. (See Doc. 11-1 at 13–14, 17–19 (LC).) In July 2022,

28 2 The factual allegations in the lead and consolidated cases are substantively identical. For convenience, only the lead case is cited in this section. 1 Defendant hired Plaintiff as a Site Director and assigned him to work at Doolen Middle 2 School in Tucson, Arizona. (Doc. 11 at 7–8 (LC).) Plaintiff’s employment was terminated 3 in January 2023. (Id. at 7.) Plaintiff alleges that, throughout his employment, he was treated 4 differently than other employees based on his Iraqi national origin and Muslim faith. (Id.) 5 The first incident occurred in August 2022, during a meeting with Defendant’s Chief 6 of Staff, Barbara Azarias. (Id.) Azarias told Plaintiff that although “Site Director” was a 7 supervisor’s title, Plaintiff lacked supervisory authority and was just another member of 8 the team. (Id.) Other Site Directors, who were neither Iraqi nor Muslim, were not told that 9 they lacked supervisory authority. (Id.) The second incident occurred sometime thereafter. 10 Azarias told Plaintiff to carpool with a female coworker to a meeting, but Plaintiff rode his 11 bike instead. (Id. at 7, 11.) Azarias inquired as to the reason Plaintiff rode his bike, asking 12 if “it was against [his] religion and culture to ride in the car with [a] woman.” (Id. at 7.) 13 Plaintiff was “appalled” at Azarias’s question. (Id. at 10.) The third incident occurred in 14 November 2022. (Id. at 7.) Plaintiff originally reported to the Chief Community Officer, 15 but Azarias changed his job description so that he reported to the Director of Quality, 16 Tiffany Emerson. (Id. at 7–8.) Plaintiff was the only employee whose job description was 17 changed. (Id. at 8.) 18 The last incidents occurred on January 25, 2023. In a group work chat, Azarias and 19 others discussed whether a certain employee, who was a veteran of the Iraq War, should 20 train Plaintiff on “collaboration, clear communication, and other conduct related things.” 21 (Doc. 11-1 at 2 (LC).) Azarias wrote that Plaintiff had told the other employee that Plaintiff 22 “forgives him for being in Iraq during war . . . so maybe not a good fit.” (Id.) Later that 23 day, Emerson canceled a student field trip that Plaintiff had organized. (Id.) Plaintiff had 24 completed all tasks required for the trip to proceed, but Emerson added new requirements 25 at the last minute and then canceled the trip when Plaintiff could not satisfy them. (Doc. 11 26 at 9–10, 12 (LC).) 27 After the trip was canceled, Plaintiff told Emerson that he had “serious concerns” 28 he was being treated differently. (Id. at 8.) Emerson dismissed Plaintiff’s concerns and 1 stated that she and Azarias had decided to send Plaintiff home early. (Id.) Plaintiff was not 2 allowed to return to work, and his employment was terminated on January 31. (Id.) 3 III. Discussion 4 A. Lead Case 5 Plaintiff asserts the following claims: (1) national origin discrimination in violation 6 of Title VII of the Civil Rights Act, (2) religious discrimination in violation of Title VII, 7 (3) retaliation in violation of Title VII, (4) retaliation in violation of the Civil Rights of 8 Institutionalized Persons Act, (5) national origin discrimination under Title VI of the Civil 9 Rights Act, (6) retaliation in violation of the Americans with Disabilities Act, (7) retaliation 10 in violation of the Fair Labor Standards Act, and (8) intentional infliction of emotional 11 distress. Defendant moves to dismiss the fourth, fifth, sixth, seventh, and eighth claims. 12 Each is addressed in turn. 13 Civil Rights of Institutionalized Persons Act: This Act prohibits states from 14 subjecting incarcerated persons “to egregious or flagrant conditions which deprive such 15 persons of any rights, privileges, or immunities secured or protected by the Constitution or 16 laws of the United States . . . .” 42 U.S.C. § 1997a(a). It also prohibits states from retaliating 17 against any person who reports such conditions. Id. § 1997d. Plaintiff fails to state a claim 18 under this law because he does not allege that Defendant subjected anyone to egregious or 19 flagrant conditions of confinement, or that Defendant retaliated against him for reporting 20 such conditions. 21 Title VI: Title VI provides that “[n]o person in the United States shall, on the ground 22 of race, color, or national origin, be excluded from participation in, be denied the benefits 23 of, or be subjected to discrimination under any program or activity receiving Federal 24 financial assistance.” 42 U.S.C. § 2000d. Plaintiff fails to state a claim under this law 25 because he does not allege that Defendant receives federal financial assistance. See Fobbs 26 v. Holy Cross Health Sys. Corp., 29 F.3d 1439, 1447 (9th Cir. 1994) (listing the elements 27 of a Title VI claim), overruled on other grounds by Daviton v. Columbia/HCA Healthcare 28 Corp., 241 F.3d 1131 (9th Cir. 2001) (en banc). 1 Americans with Disabilities Act: This Act forbids disability discrimination in 2 employment and public services. 42 U.S.C. §§ 12112(a), 12132. It also forbids retaliation 3 against any person who opposes such discrimination. Id. § 12203(a). Plaintiff fails to state 4 a claim under this law because he does not allege that Defendant discriminated against 5 anyone based on disability, or that Defendant retaliated against him for opposing such 6 discrimination. 7 Fair Labor Standards Act: This Act requires that employers pay their employees 8 a minimum wage and overtime wage. 29 U.S.C. §§ 206, 207. It also forbids retaliation 9 against any employee who initiates a proceeding under its provisions or who “has testified 10 or is about to testify in any such proceeding.” Id. § 215(a)(3). Plaintiff fails to state a claim 11 under this law because he does not allege that Defendant violated it, or that Defendant 12 retaliated against him for filing a complaint or testifying about a violation. 13 Intentional Infliction of Emotional Distress:3 Under Arizona law, this claim has 14 three elements: (1) “extreme and outrageous conduct by the defendant”; (2) “defendant’s 15 intent to cause emotional distress or reckless disregard of the near certainty that such 16 distress will result from defendant’s conduct”; and (3) “resulting severe emotional 17 distress.” Wallace v. Casa Grande Union High Sch. Dist. No. 82 Bd. of Governors, 909 18 P.2d 486, 495 (Ariz. Ct. App. 1995) (citing Ford v. Revlon, Inc., 734 P.2d 580, 585 (Ariz. 19 1987)). At issue here are the first and second elements. 20 As to the first element, the trial court must decide “whether the acts at issue are 21 sufficiently outrageous to state a claim for relief.” Johnson v. McDonald, 3 P.3d 1075, 1080 22 (Ariz. Ct. App. 1999). The acts must be “so outrageous in character and so extreme in 23 degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious 24 and utterly intolerable in a civilized community.” Patton v. First Fed. Sav. & Loan Ass’n 25 of Phx., 578 P.2d 152, 155 (Ariz. 1978) (quoting Cluff v. Farmers Ins., 460 P.2d 666, 668

26 3 Plaintiff purports to bring this claim under “Restatement (Second) of Torts §§ 46,” but the Restatement is not a source of substantive law in Arizona. Powers v. Taser Int’l, 27 Inc., 174 P.3d 777, 782 (Ariz. Ct. App. 2007). Because Arizona’s common-law claim for “intentional infliction of emotional distress” is modeled after § 46, Watts v. Golden Age 28 Nursing Home, 619 P.2d 1032, 1035 (Ariz. 1980), Plaintiff’s claim is construed as a common-law claim. 1 (Ariz. Ct. App. 1969)). “Such conduct ‘must completely violate human dignity’ and ‘strike 2 to the very core of one’s being, threatening to shatter the frame upon which one’s emotional 3 fabric is hung.’ It does not include ‘mere insults, indignities, threats, annoyances, petty 4 oppressions, or other trivialities.’” Christakis v. Deitsch, 478 P.3d 241, 245 (Ariz. Ct. App. 5 2020) (first quoting Pankratz v. Willis, 744 P.2d 1182, 1189 (Ariz. Ct. App. 1987); and then 6 quoting Duhammel v. Star, 653 P.2d 15, 18 (Ariz. Ct. App. 1982)). 7 The conduct alleged in this case is not sufficiently outrageous. “[I]t is extremely 8 rare to find conduct in the employment context that will rise to the level of outrageousness 9 necessary to provide a basis for recovery for the tort of intentional infliction of emotional 10 distress.” Mintz v. Bell Atl. Sys. Leasing Int’l, Inc., 905 P.2d 559, 563 (Ariz. Ct. App. 1995) 11 (quoting Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d. Cir. 1988)). Plaintiff alleges 12 that Azarias told him that he had no supervisory authority despite having a supervisor’s 13 title; that Azarias changed his job description; that Emerson canceled his event without 14 good reason; and that Defendant fired him. These types of acts are common in the 15 employment context, so they do not go beyond all possible bounds of decency—even when 16 they are motivated by an improper purpose. See id. (holding that a failure to promote was 17 not sufficiently outrageous, “even if it was motivated by sex discrimination or retaliation”); 18 Wallace, 909 P.2d at 495 (holding that nonrenewal of an employment contract, change of 19 employment duties, and reduction of salary were not sufficiently outrageous). 20 Plaintiff further alleges that Azarias made two discriminatory statements. Neither is 21 sufficiently outrageous. Azarias asked whether Plaintiff’s culture and religion prohibited 22 him from riding in a car with a woman. (Doc. 11 at 10–11 (LC).) This question might have 23 been intrusive and insensitive, but it cannot reasonably be described as “utterly intolerable 24 in a civilized community.” Patton, 578 P.2d at 155 (quoting Cluff, 460 P.2d at 668). It was 25 asked in the context of Plaintiff’s job, i.e., Azarias was attempting to learn the reason that 26 Plaintiff, an employee, had not followed a job-related instruction. The question is a far cry 27 from the type of bigoted remarks that can support an intentional-infliction claim. See, e.g., 28 Bakhit v. Safety Markings, Inc., 33 F. Supp. 3d 99, 104–05 (D. Conn. 2014) (holding, under 1 the same outrageous-conduct standard, that the plaintiffs stated a claim based on their 2 coworkers’ frequent use of slurs such as “nigger,” “camel jockey,” “terrorist,” and “spic”); 3 Burnett v. Am. Fed’n of Gov’t Emps., 102 F. Supp. 3d 183, 191 (D.D.C. 2015) (holding, 4 under the same standard, that the plaintiff stated a claim based on the defendant’s “pattern 5 of racist and discriminatory comments”). 6 Azarias also stated that Plaintiff and another employee were “maybe not a good fit” 7 to work together because Plaintiff had stated that he “forgives” the other employee for his 8 military service in Iraq. (Doc. 11-1 at 2 (LC).) In the employment context, it is common 9 for employers to consider their employees’ abilities to work with others, and to keep apart 10 employees who do not work well together. Azarias’s message shows that she was merely 11 concerned that, given their prior interaction, Plaintiff and the other employee would not 12 work well together. That is not outrageous. See Mintz, 905 P.2d at 563 (“[I]t is extremely 13 rare to find conduct in the employment context that will rise to the level of outrageousness 14 necessary to provide a basis for recovery for the tort of intentional infliction of emotional 15 distress.” (quoting Cox, 861 F.2d at 395)). 16 As to the second element, Plaintiff must allege facts indicating that Defendant either 17 intended to cause him emotional distress or acted with reckless disregard of the “near 18 certainty” that he would suffer emotional distress. Wallace, 909 P.2d at 495 (citing Ford, 19 734 P.2d at 585). The Court agrees with Defendant that Plaintiff has failed to plead this 20 element. The complaint indicates that Azarias’s intent in asking Plaintiff about his religion 21 and culture was to find out why he had not followed her instruction. The context does not 22 suggest that she intended to cause Plaintiff emotional distress, or that she disregarded the 23 near certainty that her question would cause such distress. As to the chat message, an 24 exhibit to the complaint indicates that the comment was not directed at Plaintiff, so it cannot 25 be inferred that Azarias intended to cause Plaintiff emotional distress. Further, because the 26 comment concerned a legitimate employment interest—team dynamics—it cannot be said 27 that Azarias should have known that there was a near certainty that the comment would 28 cause Plaintiff emotional distress. 1 Plaintiff’s response to all of this is to repeat his allegations and to submit evidence 2 showing that he suffered emotional distress. However, as just explained, his allegations do 3 not clear the high bar for outrageous conduct. Nor do they plausibly allege intent. The 4 allegations and exhibits do plausibly allege the third element—severe emotional distress— 5 but that is not enough to save his claim. He must adequately plead all elements. See Nguyen 6 v. Endologix, Inc., 962 F.3d 405, 419 (9th Cir. 2020) (“Because the complaint fails to plead 7 scienter, we have no occasion to address defendants’ other arguments as to why the 8 complaint may fail to plead other necessary elements.”). He has not done so here. 9 B. Consolidated Case 10 Plaintiff asserts the following claims: (1) retaliation in violation of Title VII, 11 (2) national origin discrimination in violation of the Arizona Civil Rights Act (ACRA), 12 (3) religious discrimination in violation of ACRA, (4) retaliation in violation of ACRA, 13 (5) wrongful termination in violation of the Arizona Employment Protection Act (AEPA), 14 (6) constructive discharge in violation of AEPA, (7) intentional infliction of emotional 15 distress, and (8) “Torts §46.” Defendant moves to dismiss the seventh and eighth claims. 16 Presumably, “Torts §46” is a reference to § 46 of the Restatement (Second) of Torts. 17 As explained earlier, the Restatement does not create substantive law. Because Arizona’s 18 common-law claim for intentional infliction of emotional distress uses § 46’s standard, 19 Plaintiff’s complaint is construed as alleging a single common-law claim. As to whether 20 Plaintiff has stated a claim under that theory, the allegations and arguments are the same 21 as those in the lead case. So, for the reasons stated above, Plaintiff fails to state a claim. 22 IV. Conclusion 23 The Court finds that Defendant’s motions to dismiss should be granted. In the lead 24 case, the following claims should be dismissed: retaliation in violation of the Civil Rights 25 of Institutionalized Persons Act, national origin discrimination under Title VI, retaliation 26 in violation of the Americans with Disabilities Act, retaliation in violation of the Fair Labor 27 Standards Act, and intentional infliction of emotional distress. In the consolidated case, the 28 claim of intentional infliction of emotional distress should be dismissed. 1 As a housekeeping matter, the Court also finds that the Title VII claim in the 2|| consolidated case should be dismissed because it is duplicative of one of the claims in the lead case. “It is well established that a district court has broad discretion to control its own docket, and that includes the power to dismiss duplicative claims.” M.M. v. Lafayette Sch. || Dist., 681 F.3d 1082, 1091 (9th Cir. 2012) (citing Adams v. Cal. Dep’t of Health Servs., 6|| 487 F.3d 684, 688-89 (9th Cir. 2007)). The Title VII retaliation claim in the consolidated 7 || case is identical to the one alleged in the lead case and should therefore be dismissed. See 8 || id. (affirming the dismissal of a claim because it was duplicative of a claim in a different || case between the same parties).* 10 Recommendation 11 The Court recommends that Plaintiffs motion to remand (Doc. 13, No. CV-24-538) 12 || be denied, and that Defendant’s partial motions to dismiss (Doc. 14, No. CV-24-502; || Doc. 8, No. CV-24-538) be granted. As to the consolidated case (No. CV-24-538), the Court further recommends that Plaintiffs claim of retaliation under Title VII be dismissed 15 || without prejudice as duplicative. 16 This recommendation is not immediately appealable to the United States Court of 17 || Appeals for the Ninth Circuit. The parties have 14 days to file specific written objections 18 || with the district court. Fed. R. Civ. P. 72(b)(2). The parties have 14 days to file responses to objections. Jd. The parties may not file replies on objections absent the district court’s 20 || permission. A failure to file timely objections may result in the waiver of de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 22 Dated this 30th day of January, 2025. 23 4 Ghee 5 United States Magistrate Judge 4 If the sole federal-law claim is dismissed from the consolidated case, the Court will have discretion to exercise supplemental jurisdiction over the remaining state-law claims. 27|| See Osborn v. Haley, 549 ug 225, 245 (2007) (“Even if only state-law claims remained after resolution of the federal question, the District Court would have discretion, consistent 28] with Article III, to retain jurisdiction.”’”). Such discretion is properly exercised here, given that the consolidated case is based on the same facts as the lead. case.

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