1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Zryan Rhett Carlson, No. CV-23-08578-PCT-JAT
10 Plaintiff, ORDER
11 v.
12 Walmart Incorporated,
13 Defendant. 14 15 Currently pending before the Court is Defendant Walmart, Inc.’s (“Walmart”) 16 Motion to Dismiss. (Doc. 7). Plaintiff has not responded. The Court now rules on the 17 motion. 18 I. FACTUAL BACKGROUND 19 The following summary of facts is taken from the Complaint and attachments 20 thereto. In deciding a motion to dismiss for failure to state a claim, the Court must construe 21 the facts alleged in the Complaint in the light most favorable to the plaintiff and the Court 22 must accept all well-pleaded factual allegations as true. See Shwarz v. United States, 234 23 F.3d 428, 435 (9th Cir. 2000). 24 Plaintiff Zryan Rhett Carlson filed his Complaint against Defendant in the Superior 25 Court of Arizona on September 15, 2023. (Doc. 1-3 at 3). He proceeds pro se. Defendant 26 timely removed the case under both diversity and federal question jurisdiction on October 27 12, 2023. (Id. at 37–38). Plaintiff is a former employee of Defendant Walmart. (Id. at 10). 28 At the beginning of Plaintiff’s employment, he informed human resources that he had a 1 “disability in a light form and needed more clear work instruction.” (Id. at 10). Human 2 resources purportedly told him they would let his managers know. (Id.) Plaintiff worked 3 for about two months in his job as a truck unloader associate until one day he “had an 4 employee decide to tell [him] how to do [his] job.” (Id.) The “[c]onversation got a little bit 5 heated and [he] tried to remove [him]self from [t]he situation and go talk to a manager 6 about it. However, [he] was not given reasonable accommodation to do so.” (Id.) Plaintiff 7 discussed the incident with his supervisors the next day and explained that the other 8 employee “got in the way of [his] job instruction including the coach’s instruction which 9 led to issues.” According to Plaintiff, the employee “decided not to follow coach’s 10 instruction and correction of issue [sic] which resulted in [Plaintiff] being wrongfully 11 terminated from the employer.” (Id.) 12 Plaintiff allegedly attempted to appeal the decision and was told he could not 13 reapply for six months. (Id.) However, he was also allegedly told he could not be rehired. 14 (Id.) Plaintiff then applied for unemployment benefits. (Id.) Attached to the Complaint, 15 Plaintiff has provided a letter from the Arizona Department of Economic Security stating 16 that Plaintiff was eligible for unemployment insurance. (Id. at 8). The letter further stated 17 that Plaintiff’s “employer has not provided evidence that [Plaintiff’s] discharge was for 18 disqualifying reasons.” (Id.) It is unclear as to whether Plaintiff received the unemployment 19 insurance he was purportedly entitled to receive. 20 In his Complaint, Plaintiff alleges that (1) “Walmart Inc. is in violation of 21 employment law & statute A.R.S. 23-775.2[;]” (2) “Walmart Inc. did not provide enough 22 reason to legally fire me under State & Federal laws[;]” and (3) “unemployment has 23 determined wrongfull [sic] termination under A.R.S. statute 23-775.2.” (Id. at 5). 24 II. STANDARD OF REVIEW 25 The Court may dismiss a complaint for failure to state a claim under Federal Rule 26 of Civil Procedure 12(b)(6) for two reasons: (1) lack of a cognizable legal theory or 27 (2) insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police 28 Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To survive a 12(b)(6) motion to dismiss for failure 1 to state a claim, a complaint must meet the requirements of Federal Rule of Civil Procedure 2 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the claim showing that the 3 pleader is entitled to relief,” so that the defendant has “fair notice of what the . . . claim is 4 and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 5 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 6 III. DISCUSSION 7 Defendant argues that the case should be dismissed because Plaintiff fails to state a 8 claim. Plaintiff sues under A.R.S. § 23-775.2. The Court will interpret this to be A.R.S. 9 § 23-775(2), which states: An individual shall be disqualified for benefits: 10 2. For the week in which the individual has been discharged for wilful or 11 negligent misconduct connected with the employment, and in addition to the waiting week, for the duration of the individual's unemployment and until 12 the individual has earned wages in an amount equivalent to five times the 13 individual's weekly benefit amount otherwise payable. 14 Defendant claims that this statute “does not discuss a cause of action versus an employer 15 whatsoever.” (Doc. 7 at 4). The Court agrees with Defendant. A.R.S. § 23-775(2) does not 16 provide a cause of action, and Plaintiff has pointed to no other statute or law that provides 17 a cause of action to provide relief for the alleged transgression of Defendant. Plaintiff’s 18 assertion that “Walmart did not have enough reason to legally fire me under State and 19 Federal Laws” is conclusory, and Plaintiff does not provide the Court with any of the state 20 or federal laws that Defendant allegedly violated when it terminated Plaintiff. Due to 21 Plaintiff’s failure to identify any legal theory under which he is entitled to relief, he has 22 failed to state a claim, and the Court dismisses his claims without prejudice. See Indep. 23 Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“Our circuit has 24 repeatedly admonished that we cannot manufacture arguments [for a party] . . . . Rather, 25 we ‘review only issues which are argued specifically and distinctly . . . .’”) (quoting 26 Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994)); Balistreri, 901 F.2d 27 at 699. 28 The Ninth Circuit Court of Appeals has instructed district courts to grant leave to 1 amend, sua sponte, when dismissing a case for failure to state a claim, “unless [the Court] 2 determines that the pleading could not possibly be cured by the allegation of other facts.” 3 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quoting Doe v. United 4 States, 58 F.3d 494, 497 (9th Cir. 1995)). Here, the Court cannot conclude that no facts 5 could be alleged against Defendant that would state a claim.1 Therefore, the Court will 6 grant Plaintiff leave to amend his claims. The Court notes that Defendant is correct in its 7 assertion that Plaintiff must exhaust administrative remedies by filing a charge of 8 discrimination with the Equal Employment Opportunity Commission (“EEOC”) before 9 seeking a federal adjudication of any ADA-related claims. See EEOC v. Farmer Bros. Co., 10 31 F.3d 891, 899 (9th Cir. 1994). 11 IV.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Zryan Rhett Carlson, No. CV-23-08578-PCT-JAT
10 Plaintiff, ORDER
11 v.
12 Walmart Incorporated,
13 Defendant. 14 15 Currently pending before the Court is Defendant Walmart, Inc.’s (“Walmart”) 16 Motion to Dismiss. (Doc. 7). Plaintiff has not responded. The Court now rules on the 17 motion. 18 I. FACTUAL BACKGROUND 19 The following summary of facts is taken from the Complaint and attachments 20 thereto. In deciding a motion to dismiss for failure to state a claim, the Court must construe 21 the facts alleged in the Complaint in the light most favorable to the plaintiff and the Court 22 must accept all well-pleaded factual allegations as true. See Shwarz v. United States, 234 23 F.3d 428, 435 (9th Cir. 2000). 24 Plaintiff Zryan Rhett Carlson filed his Complaint against Defendant in the Superior 25 Court of Arizona on September 15, 2023. (Doc. 1-3 at 3). He proceeds pro se. Defendant 26 timely removed the case under both diversity and federal question jurisdiction on October 27 12, 2023. (Id. at 37–38). Plaintiff is a former employee of Defendant Walmart. (Id. at 10). 28 At the beginning of Plaintiff’s employment, he informed human resources that he had a 1 “disability in a light form and needed more clear work instruction.” (Id. at 10). Human 2 resources purportedly told him they would let his managers know. (Id.) Plaintiff worked 3 for about two months in his job as a truck unloader associate until one day he “had an 4 employee decide to tell [him] how to do [his] job.” (Id.) The “[c]onversation got a little bit 5 heated and [he] tried to remove [him]self from [t]he situation and go talk to a manager 6 about it. However, [he] was not given reasonable accommodation to do so.” (Id.) Plaintiff 7 discussed the incident with his supervisors the next day and explained that the other 8 employee “got in the way of [his] job instruction including the coach’s instruction which 9 led to issues.” According to Plaintiff, the employee “decided not to follow coach’s 10 instruction and correction of issue [sic] which resulted in [Plaintiff] being wrongfully 11 terminated from the employer.” (Id.) 12 Plaintiff allegedly attempted to appeal the decision and was told he could not 13 reapply for six months. (Id.) However, he was also allegedly told he could not be rehired. 14 (Id.) Plaintiff then applied for unemployment benefits. (Id.) Attached to the Complaint, 15 Plaintiff has provided a letter from the Arizona Department of Economic Security stating 16 that Plaintiff was eligible for unemployment insurance. (Id. at 8). The letter further stated 17 that Plaintiff’s “employer has not provided evidence that [Plaintiff’s] discharge was for 18 disqualifying reasons.” (Id.) It is unclear as to whether Plaintiff received the unemployment 19 insurance he was purportedly entitled to receive. 20 In his Complaint, Plaintiff alleges that (1) “Walmart Inc. is in violation of 21 employment law & statute A.R.S. 23-775.2[;]” (2) “Walmart Inc. did not provide enough 22 reason to legally fire me under State & Federal laws[;]” and (3) “unemployment has 23 determined wrongfull [sic] termination under A.R.S. statute 23-775.2.” (Id. at 5). 24 II. STANDARD OF REVIEW 25 The Court may dismiss a complaint for failure to state a claim under Federal Rule 26 of Civil Procedure 12(b)(6) for two reasons: (1) lack of a cognizable legal theory or 27 (2) insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police 28 Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To survive a 12(b)(6) motion to dismiss for failure 1 to state a claim, a complaint must meet the requirements of Federal Rule of Civil Procedure 2 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the claim showing that the 3 pleader is entitled to relief,” so that the defendant has “fair notice of what the . . . claim is 4 and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 5 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 6 III. DISCUSSION 7 Defendant argues that the case should be dismissed because Plaintiff fails to state a 8 claim. Plaintiff sues under A.R.S. § 23-775.2. The Court will interpret this to be A.R.S. 9 § 23-775(2), which states: An individual shall be disqualified for benefits: 10 2. For the week in which the individual has been discharged for wilful or 11 negligent misconduct connected with the employment, and in addition to the waiting week, for the duration of the individual's unemployment and until 12 the individual has earned wages in an amount equivalent to five times the 13 individual's weekly benefit amount otherwise payable. 14 Defendant claims that this statute “does not discuss a cause of action versus an employer 15 whatsoever.” (Doc. 7 at 4). The Court agrees with Defendant. A.R.S. § 23-775(2) does not 16 provide a cause of action, and Plaintiff has pointed to no other statute or law that provides 17 a cause of action to provide relief for the alleged transgression of Defendant. Plaintiff’s 18 assertion that “Walmart did not have enough reason to legally fire me under State and 19 Federal Laws” is conclusory, and Plaintiff does not provide the Court with any of the state 20 or federal laws that Defendant allegedly violated when it terminated Plaintiff. Due to 21 Plaintiff’s failure to identify any legal theory under which he is entitled to relief, he has 22 failed to state a claim, and the Court dismisses his claims without prejudice. See Indep. 23 Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“Our circuit has 24 repeatedly admonished that we cannot manufacture arguments [for a party] . . . . Rather, 25 we ‘review only issues which are argued specifically and distinctly . . . .’”) (quoting 26 Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994)); Balistreri, 901 F.2d 27 at 699. 28 The Ninth Circuit Court of Appeals has instructed district courts to grant leave to 1 amend, sua sponte, when dismissing a case for failure to state a claim, “unless [the Court] 2 determines that the pleading could not possibly be cured by the allegation of other facts.” 3 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quoting Doe v. United 4 States, 58 F.3d 494, 497 (9th Cir. 1995)). Here, the Court cannot conclude that no facts 5 could be alleged against Defendant that would state a claim.1 Therefore, the Court will 6 grant Plaintiff leave to amend his claims. The Court notes that Defendant is correct in its 7 assertion that Plaintiff must exhaust administrative remedies by filing a charge of 8 discrimination with the Equal Employment Opportunity Commission (“EEOC”) before 9 seeking a federal adjudication of any ADA-related claims. See EEOC v. Farmer Bros. Co., 10 31 F.3d 891, 899 (9th Cir. 1994). 11 IV. CONCLUSION 12 Based on the foregoing, 13 IT IS ORDERED Defendant’s Motion to Dismiss (Doc. 7) is GRANTED. 14 IT IS FURTHER ORDERED that Plaintiff shall file a Second Amended 15 Complaint that complies with the requirements of Federal Rules of Civil Procedure 8(a) 16 and 10(b) and shall set forth the factual bases for Plaintiff’s claims within fourteen (14) 17 days of the date of this Order. 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 1 For example, an ADA interference claim requires a showing that an individual 24 (1) exercised or enjoyed a right expressly granted by the ADA, such as requesting or receiving an accommodation; (2) he was subjected to interference, coercion or threats in 25 relation to the exercise or enjoyment of that right; and, (3) he suffered “a distinct and palpable injury” as a result. See Brown v. City of Tucson, 336 F.3d 1181, 1191–9 (9th Cir. 26 2003) (citing Walker v. City of Lakewood, 272 F.3d 1114, 1123 (9th Cir. 2001)). Additionally, “[t]o prevail on an ADA claim of unlawful discharge the plaintiff must 27 establish a prima facie case by showing that: (1) he is a disabled person within the meaning of the statute; (2) he is a qualified individual with a disability; and (3) he suffered an 28 adverse employment action because of his disability.” Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884, 891 (9th Cir. 2001). 1 IT IS FURTHER ORDERED that if Plaintiff fails to file an amended complaint within fourteen (14) days, this case will be dismissed for failure to state a claim, and the 3 || Clerk of the Court shall enter judgment accordingly. 4 Dated this 14th day of February, 2024. 5 6 ' James A. Teilborg 8 Senior United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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