Angel Sallas v. Tucson Medical Center

• Court: District Court, D. Arizona
• Decided: March 27, 2026
• Docket: 4:25-cv-00190
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Angel Sallas, No. CV-25-00190-TUC-EJM 10 Plaintiff, 11 v. ORDER1

12 Tucson Medical Center, 13 Defendant. 14 Pending before the Court is Defendant TMC’s Partial Motion to Dismiss Complaint 15 (Doc. 14). Plaintiff responded in opposition to the motion to dismiss and Defendant 16 replied. (Docs. 21, 24.) On March 26, 2026, the Court held oral argument. As such, the 17 motion is fully briefed and ripe for adjudication. As discussed below, the Court will grant 18 in part and deny in part Defendants’ motion to dismiss. 19 20 I. FACTUAL BACKGROUND2 21 Plaintiff was an employee of Tucson Medical Center. Compl. (Doc. 1-2) at ¶ 8. 22 During her time working at TMC, Plaintiff was pregnant, which Defendant knew. Id. ¶ 9– 23 10. During her pregnancy, Plaintiff was required “to ‘turn’ patients which involved lifting 24 and holding patients using substantial physical effort.” Id. ¶ 11. Plaintiff was also required 25 “to attend to patients in isolation despite her increased susceptibility to infections and

26 1 The Parties have consented to the jurisdiction of the undersigned. (Docs. 7, 19.) 27 2 For purposes of this Order, the Court will take as true the factual allegations contained in 28 Plaintiff’s Complaint (Doc. 1-2). See Association for Los Angeles Deputy Sheriffs v. County of Los Angeles, 648 F.3d 986, 991 (9th Cir. 2011). 1 suppressed immune system due to her pregnancy.” Id. ¶ 12. Defendant did not adjust the 2 tasks assigned to Plaintiff, modify her workload, or adapt her schedule to accommodate 3 her needs caused by the pregnancy. Id. ¶ 13. 4 “On multiple occasions, other employees made insensitive comments or jokes about 5 Plaintiff’s pregnancy.” Id. ¶ 14. “Plaintiff’s supervisors referred to themselves as the 6 ‘Filipino Mafia[,]’” which Plaintiff felt created a “hostile work environment.” Compl. 7 (Doc. 1-2) ¶ 15. On June 25, 2024, Defendant TMC terminated Plaintiff. Id. ¶ 16. On 8 December 11, 2024, Plaintiff received a right to sue letter from the United States Equal 9 Employment Opportunity Commission (“EEOC”). Id. ¶ 5. 10 Plaintiff brings this action pursuant to the Pregnant Workers’ Fairness Act (Count 11 One). See id. ¶¶ 20–29 (citing 42 U.S.C. § 2000gg, et seq.). Plaintiff asserts that 12 “Defendant did not make reasonable accommodations related to the known limitations of 13 [her] pregnancy[.]” Id. ¶ 23. Plaintiff further asserts that Defendant did not engage in the 14 mandatory interactive process of the Pregnant Workers’ Fairness Act, prior to her 15 termination. Compl. (Doc. 1-2) ¶ 24. Plaintiff asserts wrongful termination based upon 16 sex discrimination pursuant to Title VII (Count Three) and Arizona Civil Rights Act 17 (“ACRA”) (Count Two). See id. ¶¶ 30–49 (citing 42 U.S.C. § 2000e-2; A.R.S. § 41-1463). 18 Plaintiff also asserts a Hostile Work Environment claim in violation of the Arizona Civil 19 Rights Act (Count Four). Id. ¶¶ 50–62 (citing A.R.S. § 41-1463). Plaintiff alleges that she 20 was “subjected to discrimination due to her race by Plaintiff’s supervisors’ creating a group 21 they called the ‘Filipino Mafia’[,]” from which she was excluded due to her race. Id. ¶55– 22 56. Plaintiff further asserts that the actions of the “Filipino Mafia” altered the conditions 23 of her employment and created an abusive working environment. Id. ¶ 58. Finally, 24 Plaintiff asserts claims for Intentional Infliction of Emotional Distress (“IIED”) (Count 25 Five) and Negligent Infliction of Emotional Distress (“NIED”) (Count Six). Id. ¶¶ 63–74. 26 27 II. STANDARD OF REVIEW 28 A complaint is to contain a “short and plain statement of the claim showing that the 1 pleader is entitled to relief[.]” Rule 8(a), Fed. R. Civ. P. While Rule 8 does not demand 2 detailed factual allegations, “it demands more than an unadorned, the-defendant- 3 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 4 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 5 statements, do not suffice.” Id.; Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 (9th 6 Cir. 1998) (“conclusory allegations of law and unwarranted inferences are not sufficient to 7 defeat a motion to dismiss.”). 8 Rule 12(b)(6) motions are meant to “test[] the legal sufficiency of a claim.” Navarro 9 v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is appropriate where a plaintiff has 10 failed to “state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To 11 survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted 12 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft, 556 U.S. at 678 13 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Further, “[a] claim 14 has facial plausibility when the plaintiff pleads factual content that allows the court to draw 15 the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The 16 plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a 17 sheer possibility that a defendant has acted unlawfully.” Id. (citations omitted). 18 “When ruling on a motion to dismiss, [the Court must] accept all factual allegations 19 in the complaint as true and construe the pleadings in the light most favorable to the 20 nonmoving party.” Association for Los Angeles Deputy Sheriffs v. County of Los Angeles, 21 648 F.3d 986, 991 (9th Cir. 2011) (quoting Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 22 2005)). “The court draws all reasonable inferences in favor of the plaintiff.” Id. (citing 23 Newcal Industries, Inc. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008)). 24 This Court is not required, however, to accept conclusory statements as a factual basis. See 25 Twombly, 550 U.S. at 555; Mann v. City of Tucson, 782 F.2d 790, 793 (9th Cir. 1986) 26 (“Although we must, in general, accept the facts alleged in the complaint as true, wholly 27 vague and conclusory allegations are not sufficient to withstand a motion to dismiss.”). 28 Accordingly, “[d]ismissal is proper under Rule 12(b)(6) if it appears beyond doubt that the 1 non-movant can prove no set of facts to support its claims.” Boquist v. Courtney, 32 F.4th 2 764, 773–74 (alterations in original) (quoting Admas v. Johnson, 355 F.3d 1179, 1183 (9th 3 Cir. 2004)); Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 965 (9th Cir. 2018) (quoting 4 Navarro, 250 F.3d at 732) (“[d]ismissal is proper only where there is no cognizable legal 5 theory or an absence of sufficient facts alleged to support a cognizable legal theory”). 6 7 III. ANALYSIS 8 Defendant seeks dismissal of Counts Four, Five, and Six of Plaintiff’s Complaint 9 pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure. See Def.’s Partial Mot. to 10 Dismiss (Doc. 14). Defendants attached two (2) exhibits to their motion to dismiss— 11 Plaintiff’s EEOC Charge of Discrimination, Charge No. 540-2025-01290 and the EEOC’s 12 December 11, 2024, Dismissal and Notice of Rights (right to sue letter) to Plaintiff. See 13 id., Exhs. “1” & “2.” “Generally, the scope of review on a motion to dismiss for failure to 14 state a claim is limited to the contents of the complaint.” Marder v. Lopez, 450 F.3d 445, 15 448 (9th Cir. 2006) (citations omitted). Defendant TMC requests the Court take judicial 16 notice of their exhibits. As such, the Court will first consider which documents presented 17 by Defendants should be considered in the resolution of their motion. 18 A. Judicial Notice 19 “When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers 20 evidence outside the pleadings, it must normally convert the 12(b)6) motion into a Rule 56 21 motion for summary judgment, and it must give the nonmoving party an opportunity to 22 respond.” United States v. Ritchie, 342 F.3d 903, 907–08 (9th Cir. 2003) (citing Fed. R. 23 Civ. P. 12(b); then citing Parrino v. FHP, Inc., 146 F.3d 699, 706 n.4 (9th Cir. 1998)). 24 “There are two exceptions to this rule: the incorporation-by-reference doctrine, and judicial 25 notice under Federal Rule of Evidence 201.” Khoja v. Orexigen Therapeutics, Inc., 899 26 F.3d 988, 998 (9th Cir. 2018). Additionally, “a court may consider ‘material which is 27 properly submitted as part of the complaint’ on a motion to dismiss without converting the 28 motion to dismiss into a motion for summary judgment.” Lee v. City of Los Angeles, 250 1 F.3d 668, 688 (9th Cir. 2001) (quoting Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994)), 2 overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1125–26 3 (9th Cir. 2002). 4 “The court may judicially notice a fact that is not subject to reasonable dispute 5 because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can 6 be accurately and readily determined from sources whose accuracy cannot reasonably be 7 questioned.” Fed. R. Evid. 201(b). Furthermore, “[a] court may take judicial notice of 8 ‘matters of public record’ . . . [b]ut a court may not take judicial notice of a fact that is 9 ‘subject to reasonable dispute.’” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 10 2001) (citations omitted), overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 11 307 F.3d 1119, 1125–26 (9th Cir. 2002). Therefore, “[o]n a Rule 12(b)(6) motion to 12 dismiss, when a court takes judicial notice of another court’s opinion, it may do so ‘not for 13 the truth of the facts recited therein, but for the existence of the opinion, which is not subject 14 to reasonable dispute over its authenticity.’” Id. at 690 (quoting Southern Cross Overseas 15 Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 426–27 (3d Cir. 1999)). 16 “Judicial notice is appropriate for records and ‘reports of administrative bodies.’” 17 United States v. 14.02 Acres of Land More or Less in Fresno Cnty., 547 F.3d 943, 955 (9th 18 Cir. 2008) (quoting Interstate Nat. Gas Co. v. S. Cal. Gas Co., 209 F.2d 380, 385 (9th Cir. 19 1954). “A court must also . . . identify . . . which fact or facts it is noticing” from such a 20 document. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018). 21 “District courts in the Ninth Circuit routinely take judicial notice of portions of documents 22 from the EEOC.” Overstreet v. Living Spaces Furniture LLC, No. CV-23-00248-PHX- 23 ROS, 2023 WL 4408269, at *3 (D. Ariz. July 7, 2023) (collecting cases). 24 Here, Plaintiff does not object to Defendant’s submissions. The Court finds judicial 25 notice of the fact that EEOC Charge of Discrimination, Charge No. 540-2025-01290 was 26 filed, and the EEOC issued its December 11, 2024, Dismissal and Notice of Rights (right 27 to sue letter) to Plaintiff are proper. Judicial notice of what was stated in those documents 28 is also proper. The Court will not take judicial notice of the truth of those statements, 1 merely what the administrative documents state. 2 B. Count Four: Hostile Work Environment 3 Defendants seek dismissal of Plaintiff’s Hostile Work Environment claim, which 4 includes a race-based discrimination claim, alleged in Count Four of her Complaint 5 because “[n]othing in her [EEOC] Charge would have reasonably initiated an EEOC 6 investigation into race discrimination or harassment (including hostile work environment) 7 claims[.]” Def’s. Partial Mot. to Dismiss (Doc. 14) at 5. Plaintiff counters that “[h]er 8 charge was not narrowly linked to her pregnancy as Defendant asserts[;] . . . [i]t includes 9 disparate treatment and discrimination, including race-based discrimination as that is 10 intertwined and naturally grows from her pregnancy discrimination claim.” Pl.’s Response 11 (Doc. 21) at 4. Defendant argues that “Plaintiff has not identified a single case in which a 12 plaintiff filed an administrative claim that alleged only pregnancy discrimination, but then 13 was permitted to pursue a claim based on race discrimination and entirely different facts 14 that were neither closely-related, nor redundant, of her pregnancy discrimination 15 allegations[,]” and her failure to allege race discrimination at the administrative stage bars 16 any such claim before this Court. Reply (Doc. 24) at 6. 17 The Parties agree that prior to litigating an ACRA claim in federal court, a plaintiff 18 must first file a charge with the EEOC or Arizona Civil Rights Division and receive a notice 19 of right to sue. See 42 U.S.C. § 2000e-5(f)(1) (“within ninety days after the giving of such 20 notice[,] a civil action may be brought [by the aggrieved party] against the respondent 21 named in the charge”); A.R.S. § 41-1481(D) (“After providing the notice [of dismissal of 22 the charge,] a civil action may be brought against the respondent named in the charge by 23 the charging party”). “[T]he Arizona Civil Rights Act is ‘generally identical’ to Title VII, 24 and therefore ‘federal Title VII case law [is] persuasive in the interpretation of [the 25 Arizona] Civil Rights Act.” Bodett v. CoxCom, Inc. 366 F.3d 736, 742 (9th Cir. 2004) 26 (second and third alterations in original) (quoting Higdon v. Evergreen Int’l Airlines, Inc., 27 673 P.2d 907, 909–10, n.3 (Ariz. 1983)). 28 . . . 1 1. Legal Standards 2 In 2019, the Supreme Court of the United States observed that “Title VII’s charge- 3 filing provisions ‘speak to . . . a party’s procedural obligations.’” Fort Bend Cnty., Tex. v. 4 Davis, 587 U.S. 541, 551 (2019) (quoting EPA v. EME Homer City Generation, L.P., 572 5 U.S. 489, 512 (2014)). As such, the Supreme Court overruled Ninth Circuit authority 6 treating the Title VII charge-filing requirement as jurisdictional and held that this 7 requirement “is a processing rule, albeit a mandatory one, not a jurisdictional prescription 8 delineating the adjudicatory authority of courts.” Id. It is well-established that “[w]hether 9 a plaintiff in a Title VII action has timely exhausted her administrative remedies ‘is an 10 affirmative defense, [so] the defendant bears the burden of pleading and proving it.’” 11 Kraus v. Presidio Trust Facilities Div. Residential Mgmt., 572 F.3d 1039, 1046 n.7 (9th 12 Cir. 2009) (second alteration in original); see Fox v. MHM Health Pros. LLC, No. CV-23- 13 00190-PHX-DML, 2024 WL 4364133, at *15–16 (D. Ariz. Sept. 30, 2024) (discussing 14 Fort Bend and the ramifications of EEOC exhaustion changing from jurisdictional to an 15 affirmative defense). The Ninth Circuit Court of Appeals has observed that although a 16 defendant may raise “its exhaustion defense under Rule 12(b)(6), we have said that such a 17 defense should generally be raised on summary judgment.” McIntyre v. Eugene School 18 Dist. 4J, 976 F.3d 902, 909 n.7 (9th Cir. 2020). “A defendant may raise the defense under 19 Rule 12(b)(6) ‘[i]n the rare event that a failure to exhaust is clear on the face of the 20 complaint.” Id. (alteration in original) (quoting Albino v. Baca, 747 F.3d 1162, 1166 (9th 21 Cir. 2014)). 22 “The administrative charge requirement serves the important purposes of giving the 23 charged party notice of the claim and ‘narrow[ing] the issues for prompt adjudication and 24 decision.’” B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1099 (9th Cir. 2002) (alterations 25 in original) (quoting Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995)). 26 “[I]ncidents of discrimination not included in an EEOC charge may not be considered by 27 a federal court unless the new claims are ‘like or reasonably related to the allegations 28 contained in the EEOC charge.’” Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990) 1 (quoting Green v. Los Angeles Cnty. Superintendent of Schs., 883 F.2d 1472, 1480 (9th 2 Cir. 1989)). Exhaustion “extends over all allegations of discrimination that either ‘fell 3 within the scope of the EEOC’s actual investigation or an investigation which can 4 reasonably be expected to grow out of the charge of discrimination.” B.K.B., 276 F.3d at 5 1100 (emphasis in original) (quoting EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th 6 Cir. 1994)). 7 2. Allegations Not Contained in EEOC Charge 8 Plaintiff’s Complaint establishes that she “received a ‘right to sue’ letter issued on 9 December 11, 2024[,] [and] [l]ess than 90 days ha[d] passed” when she filed this case. 10 (Doc. 1-2) ¶ 5. As such, this is not the rare case contemplated in McIntyre. “To survive a 11 motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 12 ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 13 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The standard 14 does not apply to affirmative defenses which Defendant bears the burden of pleading and 15 proving.3 See Fox, 2024 WL 4364133, at *16 (observing that questions may be raised 16 regarding the EEOC’s investigation and a court “is unable to conduct to conduct a factual 17 inquiry pursuant to Fed. R. Civ. P. 12(b)(6).” (quotations and citations omitted)). This 18 underscores why a motion to dismiss is not the proper vehicle for addressing Plaintiff’s 19 administration exhaustion. 20 Plaintiff’s EEOC Charge No. 540-2025-01290 identifies the particulars of her 21 administrative complaint, as follows: 22 Ms. Salla’s [sic] was treated differently and discriminated against and was refused reasonable accommodations due to her pregnancy. When Ms. Salla’s 23 [sic] raised the issue to her superiors she was retaliated against and then 24 terminated. 25 Def.’s Partial Mot. to Dismiss, Exh. “1” (Doc. 14-1) at 2. “EEOC charges must be 26 construed with utmost liberality since they are made by those unschooled in the 27 28 3 Defendant relies on pre-Fort Bend cases which were decided on summary judgment and do not clarify how the Court can resolve this issue on a motion to dismiss. 1 technicalities of formal pleading.” Sosa v. Hiraoka, 920 F.2d 1451, 1458 (9th Cir. 1990) 2 (internal quotations and citations omitted). Defendant reads Plaintiff’s charge with “treated 3 differently,” “discriminated against,” and “refused reasonable accommodations” all 4 modifying “due to her pregnancy.” See (Doc. 14) at 5. In support of this construction, 5 Defendant points to the second sentence which states that Ms. Sallas “raised the issue to 6 her superiors[,]” focusing on the singular form of “issue” as supportive of their reading. 7 Id. Plaintiff asserts that the intended reading is “treated differently,” “discriminated 8 against,” and “refused reasonable accommodations due to her pregnancy[,]” with each 9 phrase an independent allegation not solely related to her pregnancy. (Doc. 21) at 2–3. In 10 support of that argument, Plaintiff claims “that another employee of Filipino descent who 11 was pregnant was permitted the accommodations by the Filipino Managers that Ms. Sallas, 12 a woman not of Filipino descent, was seeking.” Id. at 3. 13 Both Plaintiff and Defendant present a reasonable reading of the EEOC charge.4 As 14 discussed earlier, however, “EEOC charges must be construed with utmost liberality since 15 they are made by those unschooled in the technicalities of formal pleading.” Sosa, 920 16 F.2d at 1451, 1458. “It is sufficient that the EEOC be apprised, in general terms, of the 17 alleged discriminatory parties and the alleged discriminatory acts.” Sosa, 920 F.2d at 1458 18 (quotations and citations omitted). To demand more “would falsify the [Civil Rights] Act’s 19 hopes and ambitions of providing a process lay people can use effectively to resolve 20 discrimination complaints.” Id. (alterations in original) (quotations and citations omitted). 21 It is also significant that no investigation of Plaintiff’s charge occurred prior to its 22 dismissal and the issuance of a right to sue letter. “A Title VII complainant is not charged 23 with the commission’s failure to perform its statutory duties.” Id. at 1101 (internal citations 24 25 4 The Court disagrees with Defendant’s contention that Cheeks v. General Dynamics, 22 F.Supp.3d 1015 (D. Ariz. 2014) is directly on point. Cheeks was before the court on a motion for 26 summary judgment and prior to the Supreme Court’s decision in Fort Bend. Additionally, this 27 Court is not bound by that decision. Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (citing 18 J. Moore et al., Moore’s Federal Practice § 134.02(1)(d) (3d ed. 2011)) (“A decision of a federal 28 district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.”). 1 and quotations omitted). Neither does Title VII “require that plaintiff separately exhaust 2 additional claims that are ‘so closely related [to the allegations made in the charge] that 3 agency action would be redundant.’” Id. at 1102 (alterations in original) (quoting Sosa, 4 920 F.2d at 1457 n.2) 5 With that backdrop, for purposes of a motion to dismiss based on failure to exhaust 6 an administrative remedy, the Court agrees with Plaintiff that a reasonable and liberal 7 reading of the EEOC charge is one where each independent allegation is separated from 8 the next by the conjunction “and.” Based on that reading, the Plaintiff’s discrimination 9 claims do not rise solely from the fact of her pregnancy, but also because she was treated 10 differently because of her race.5 Her reasonable accommodation claims, however, do arise 11 from her pregnancy. Id.; see also Compl. (Doc. 1-2). Therefore, Plaintiff’s racial 12 discrimination claims are intertwined with her pregnancy claims, and they could 13 “reasonably be expected to grow out of the charge of discrimination” if the EEOC had 14 performed an investigation. See B.K.B., 276 F.3d at 1099–1100. For these reasons, 15 Plaintiff has sufficiently demonstrated exhaustion before the EEOC to survive a motion to 16 dismiss. 17 C. Intentional Infliction of Emotional Distress 18 Defendant seeks dismissal of Plaintiff’s intentional infliction of emotional distress 19 claim (Count Five) because it fails to allege sufficiently extreme and outrageous conduct 20 to sustain such a claim. (Doc. 14) at 6–9. Defendant further asserts that Plaintiff’s 21 complaint fails to allege severe emotional distress. Id. at 9–10. Plaintiff argues that her 22 condition as a pregnant woman left her especially vulnerable and her complaint sufficiently 23 alleges an IIED claim. (Doc. 21) at 4–7. 24 25 5 Plaintiff argues that her complaint is that while working at TMC, she received accommodations for her pregnancy that were afforded to a Filipina co-worker. Pl.’s Response 26 (Doc. 21) at 3. Once that co-worker gave birth, Plaintiff’s pregnancy was no longer 27 accommodated. Id. Additionally, at oral argument, Plaintiff’s counsel noted that the pregnant co- worker was the niece of one of Plaintiff’s managers. Plaintiff’s complaint does not allege any of 28 these facts as part of the basis for her hostile work environment claims. As such, the Court will grant plaintiff leave to amend. 1 In Arizona, to establish a prima facie case for IIED a plaintiff must show that (1) 2 “the conduct by the defendant . . . [was] ‘extreme’ and ‘outrageous’”; (2) “the defendant . 3 . . either intend[ed] to cause emotional distress or recklessly disregard[ed] the near certainty 4 that such distress w[ould] result from his conduct”; and (3) that “severe emotional distress 5 . . . occur[red] as a result of defendant’s conduct.” Ford v. Revlon, Inc., 734 P.2d 580, 585 6 (Ariz. 1987). “Even if the second and third elements are present, the trial court must, on 7 the first element, make a preliminary determination whether the conduct may be considered 8 so outrageous and extreme so as to permit recovery.” Nelson v. Phoenix Resort Corp., 688 9 P.2d 1375, 1386 (Ariz. Ct. App. 1994) (citations omitted). This requires defendants acts 10 to be “so outrageous in character and so extreme in degree, as to go beyond all possible 11 bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized 12 community.” Mintz v. Bell Atl. Sys. Leasing Intern. Inc., 905 P.2d 559, 563 (Ariz. Ct. App. 13 1995) (quotations and citations omitted). “Even if a defendant’s conduct is unjustifiable, 14 it does not necessarily rise to the level of ‘atrocious’ and ‘beyond all possible bounds of 15 decency’ that would cause an average member of the community to believe it was 16 ‘outrageous.’” Nelson, 688 P.2d at 1386 (citations omitted). Arizona courts have 17 observed, “[i]t is extremely rare to find conduct in the employment context that will rise to 18 the level of outrageousness necessary to provide a basis for recovery for the tort of 19 intentional infliction of emotional distress.” Mintz, 905 P.2d at 563 (citations omitted). 20 Plaintiff’s Complaint alleges that “Defendant’s conduct during the course of 21 Plaintiff’s employment, including but not limited to its intentional discrimination against 22 an expectant mother and creation of a highly toxic hostile work environment, was extreme 23 and outrageous.” Compl. (Doc. 1-2) ¶ 65. Plaintiff describes Defendant’s conduct to 24 include not making reasonable accommodations for her pregnancy by “requiring Plaintiff 25 to ‘turn’ patients that involved the lifting and holding of the patient[;] requiring Plaintiff to 26 attend to patients in isolation despite her increased susceptibility to infections and 27 suppressed immune system, and failing to adjust her workload and scheduling.” Id. ¶ 23. 28 Plaintiff also alleges that she was “subjected to verbal abuse from Defendant’s employees 1 based on her pregnancy[,]” and this verbal abuse was “unwelcome.” Id. ¶¶ 51–52. 2 Plaintiff’s factual basis is insufficient to plausibly support a claim for IIED. Ashcroft v. 3 Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads 4 factual content that allows the court to draw the reasonable inference that the defendant is 5 liable for the misconduct alleged.”). Accordingly, dismissal of Count Five of Plaintiff’s 6 Complaint (Doc. 1-2) is appropriate. Because Plaintiff may be able to plead sufficient facts 7 to establish an IIED claim, leave to amend the complaint be granted. Balistreri v. Pacifica 8 Police Dept., 901 F.2d 696, 701 (9th Cir. 1988) (citations omitted) (finding leave to amend 9 is proper “if it appears at all possible that the plaintiff can correct the defect.”). 10 D. Negligent Infliction of Emotional Distress 11 Defendant seeks dismissal of Plaintiff’s negligent infliction of emotional distress 12 claim (Count Six) because 1) Workers’ Compensation is the exclusive remedy for 13 negligence claims against employers, depriving this Court of jurisdiction; and 2) Plaintiff 14 was neither “in the zone of danger” nor alleges sufficiently severe emotional distress to 15 establish an NIED claim. Def.’s Mot. to Dismiss (Doc. 14) at 10–12. Plaintiff argues that 16 there are exceptions to the general rule that Workers’ Compensation is the exclusive 17 remedy for negligence claims against employers. Pl.’s Response (Doc. 21) at 7. She 18 further urges that her pregnancy discrimination claim is unique from other negligence 19 claims and warrants exception from Workers’ Compensation. Id. at 7–8. Plaintiff also 20 asserts that she has sufficiently pled such a claim. Id. at 8–9. 21 Arizona law allows negligent infliction of emotional distress claims if the tortfeasor 22 (1) “should have realized that his conduct involved an unreasonable risk of causing the 23 distress”; and (2) “from the facts known to him should have realized that the distress, if it 24 were caused, might result in illness or bodily harm.” Restatement (Second) of Torts § 313 25 (1965); Ball v. Prentice, 781 P.2d 628, 630 n.1 (Ariz. Ct. App. 1989) (recognizing the 26 Arizona courts’ adoption of the Restatement NIED provision). In Arizona, however, “[i]t 27 is well settled that work-related injury claims are generally redressed exclusively under 28 Arizona’s workers’ compensation scheme.” Gamez v. Brush Wellman, Inc. 34 P.3d 375, 1 || 360 (Ariz. Ct. App. 2001) (citing A.R.S. § 23-1022). “Unless an employee specifically 2|| rejects workers’ compensation before injury, the workers’ compensation system is the 3|| exclusive remedy for that employee to recover damages resulting from his or her employer's negligence. Wagner v. State, 393 P.3d 156, 158 (Ariz. Ct. App. 2017) (citing 5|| A.R.S. § 23—-1022(A); then citing Anderson v. Indus. Comm'n, 147 Ariz. 456, 457, 711 || P.2d 595 (1985)). Plaintiff's assertions regarding the California legislature’s intentions in || enacting California law is unhelpful here. The Court agrees with Defendant that Workers’ 8 || Compensation is the exclusive remedy for Plaintiff's NIED claim. Because of this, the || Court declines to otherwise consider the sufficiency of Plaintiff's NIED claim. Count Six || shall be dismissed without leave to amend. See Hunter v. U.S. Dep't of Educ., 115 F.4th 955,971 (9th Cir. 2024) (quoting Wheeler v. City of Santa Clara, 894 F.3d 1046, 1059 (9th 12 || Cir. 2018)) (“Leave to amend may be denied if the proposed amendment is futile or would 13 || be subject to dismissal.’’). 14 IV. CONCLUSION 16 For the reasons delineated above, IT IS HEREBY ORDERED that Defendant || TMC’s Partial Motion to Dismiss Complaint (Doc. 14) is GRANTED in part and DENIED in part. Plaintiff may amend her complaint as provided herein. Any First Amended || Complaint shall be filed on or before May 1, 2026. 20 Dated this 27th day of March, 2026.

22 te Enric J. M#kovich 23 United States Magistrate Judge 24 25 26 27 28

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