Deri-Alvarado v. Waste Management

• Court: District Court, D. Arizona
• Decided: January 22, 2024
• Docket: 2:23-cv-00254
• Status: Unknown

Opinion

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

9 Tanya L Deri-Alvarado, No. CV-23-00254-PHX-JAT

10 Plaintiff, ORDER

11 v.

12 Waste Management, et al.,

13 Defendants. 14 15 Pending before the Court is Defendants Waste Management et al.’s (“WM”) Motion 16 to Dismiss, (Doc. 18). Plaintiff Tanya Deri-Alvarado has responded. (Doc. 22). Defendants 17 have replied. (Doc. 23). The Court now rules. 18 I. 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 as alleged in the Complaint in the light most favorable to 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 On February 9, 2023, Plaintiff commenced this civil action with a pro se Complaint 25 for violations of the American with Disabilities Act (“ADA”) and the Racketeer Influenced 26 and Corrupt Organizations Act (“RICO”). (Doc. 1). A Magistrate Judge issued a report and 27 recommendation concluding that the Complaint should be dismissed without prejudice for 28 failure to state a claim. (Doc. 9). The District Court adopted that report and 1 recommendation on May 15, 2023, and dismissed the case without prejudice with a 2 deadline of June 16, 2023, for Plaintiff to file an amended complaint. (Doc. 10). Plaintiff 3 timely filed an Amended Complaint on June 5, 2023. (See Doc. 17). 4 Plaintiff is a former employee of WM. (Doc. 17 at 7). At or around August 25, 2021, 5 Plaintiff began exhibiting anxiety and stomach pain for which she received a doctor’s note 6 for an accommodation at work. (Id.) WM granted her accommodation. (Id.) Plaintiff then 7 allegedly began recognizing WM company vehicles following her. (Id.) She also allegedly 8 began experiencing physical harassment and cyber bullying on her social media accounts 9 which she attributes to WM. (Id.) Plaintiff was then called into a meeting with her manager 10 O. Jackson and the human resources manager S. Parker. (Id.) At that meeting, Plaintiff 11 alleges her managers accused her of time theft by using her social media accounts during 12 work hours and violating the proper use of her granted accommodations by using social 13 media during her allotted accommodations time. (Id.) 14 In response to this meeting, Plaintiff allegedly filed an ethics complaint to WM’s 15 ethics department. (Id.) At the conclusion of the ethics department’s investigation, Plaintiff 16 alleges they found that she had done nothing wrong and asked her what she would like to 17 see happen. (Id.) She allegedly requested to be moved to a new team but claims that instead 18 “they decided to continue to harass me physically with sending their friends as well as co- 19 workers to spy on me.” (Id.) During this period, Plaintiff alleges that WM refused to pay 20 her “although [she] had the proper paperwork from [her] doctor’s office.” (Id.) She 21 attempted to rectify the non-payment issue with S. Parker, where he allegedly told her that 22 she needed “to contact New York Life regarding any issue with payments and that they 23 had nothing really to do with it.” (Id. at 8). 24 In April 2022, Plaintiff received a letter in the mail stating that she had been 25 terminated because she had not contacted WM about her short-term leave. (Id.) Plaintiff 26 allegedly communicated with different members of WM and New York Life for the next 27 three months trying to figure out whether she would be returning to work and her short- 28 term disability benefits. (Id.) During this time, Plaintiff allegedly took to social media to 1 complain about WM because she did not feel that anyone was helping her. (Id.) Plaintiff 2 was then allegedly contacted by T. Gamble on behalf of Defendants, telling Plaintiff that 3 she was “being terminated for speaking out on Social Media and that was a violation of 4 their policy.” (Id.) During the termination process, Plaintiff and WM allegedly engaged in 5 settlement negotiations that were unsuccessful. (Id.) 6 Plaintiff thereafter went to the Equal Employment Opportunity Commission 7 (“EEOC”) to ask them to conduct an investigation. (Id.) The EEOC told Plaintiff they 8 would not be pursuing an investigation and issued her a right to sue letter. (Id.) Plaintiff 9 believes she was retaliated against by Defendants for contacting the ethics department, and 10 she was “singled out and chosen to be picked on” for unexplained reasons. (Id. at 8–9). 11 Plaintiff sues under RICO and 42 U.S.C. §§ 12112–17. (Id. at 3). Defendants have filed a 12 Motion to Dismiss for failure to state a claim. (Doc. 18). 13 II. STANDARD OF REVIEW 14 The Court may dismiss a complaint for failure to state a claim under Federal Rule 15 of Civil Procedure 12(b)(6) for two reasons: (1) lack of a cognizable legal theory or (2) 16 insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police 17 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To survive a 12(b)(6) motion to dismiss for 18 failure to state a claim, a complaint must meet the requirements of Federal Rule of Civil 19 Procedure 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the claim showing 20 that the pleader is entitled to relief,” so that the Defendants has “fair notice of what 21 the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 22 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 23 In reviewing a complaint for failure to state a claim, the Court “must construe the 24 complaint in the light most favorable to the plaintiff and must accept all well-pleaded 25 factual allegations as true,” Schwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000), 26 but “[c]onclusory allegations and unreasonable inferences . . . are insufficient to defeat a 27 motion to dismiss,” Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). But as the United 28 States Court of Appeals for the Ninth Circuit has instructed, courts must “continue to 1 construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A 2 “complaint [filed by a pro se litigant] ‘must be held to less stringent standards than formal 3 pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). 4 If the Court determines that a pleading could be cured by the allegation of other facts, a 5 pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the 6 action. See Lopez v. Smith, 203 F.3d 1122, 1127–29 (9th Cir. 2000) (en banc). 7 III. ANALYSIS 8 Defendants argue that Plaintiff’s claims in the Amended Complaint must be 9 dismissed because it “simply repackages the same theories and allegations that the Court 10 rejected in her initial Complaint” and these “allegations continue to fail to state a claim 11 upon which relief can be granted.” (Doc. 18 at 1–2). In her Response, Plaintiff concedes 12 that “[D]efendants are correct that the amended complaint is verbatim because the situation 13 is still the same.” (Doc. 22 at 1). The Court will address each of Plaintiff’s claims in turn. 14 A. RICO Claim 15 As the Magistrate Judge pointed out, (Doc. 9 at 3), there is no private right of action 16 for Plaintiff to bring a criminal RICO charge. See Leeke v. Timmerman, 454 U.S. 83, 85– 17 86 (1981) (“[A] private citizen lacks a judicially cognizable interest in the prosecution or 18 nonprosecution of another.”). However, the Court will liberally construe Plaintiff’s 19 Amended Complaint to allege a civil RICO claim. 20 To successfully plead a civil RICO claim under 18 U.S.C. § 1964, Plaintiff must 21 adequately allege a violation of section 1962 which involves (1) conduct (2) of an 22 enterprise (3) through a pattern (4) of racketeering activity. See Howard v. America Online 23 Inc., 208 F.3d 741, 746 (9th Cir. 2000) (citing Sedima S.P.R.L. v. Imrex Corp., 473 U.S. 24 479, 496 (1985)). Moreover, Plaintiff must also show her business or property was injured 25 by Defendants’ alleged violation of section 1962. 18 U.S.C. § 1964(c). At issue is whether 26 Plaintiff properly alleged a pattern of racketeering activity or alleged that her business or 27 property has been injured by such racketeering activity. 28 A pattern is defined as “at least two acts of racketeering activity” within ten years 1 of each other. 18 U.S.C. § 1861(5). “Racketeering activity” is one of the several indictable 2 acts listed under section 1961(1). Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). 3 “[T]he term ‘pattern’ itself requires the showing of a relationship between the predicates 4 and of the threat of continuing activity.” Id. at 239. 5 Plaintiff alleges in a conclusory fashion that Defendants have engaged in “organized 6 group stalking on [and] offline.” (Doc. 17 at 3). Plaintiff’s factual allegations to support 7 this claim are as follows: “[I] started noticing vehicles following me, sotting [sic] outside 8 my house followed by multiple individuals harassing me physically and cyber bullying me 9 on ALL my Social Media Accounts[;]” and “harass[ing] me physically with sending their 10 friends and co-workers to spy on me.” (Id. at 7–8). Even taken as true, Plaintiff’s allegation 11 of “organized group stalking” does not qualify as an indictable act under section 1961(1). 12 See 18 U.S.C. § 1961(1). Further, Plaintiff has not alleged a pattern of racketeering activity. 13 Without one instance of racketeering activity, by definition, there cannot be a second 14 racketeering activity. See 18 U.S.C. § 1961(5). Thus, the Court finds that Plaintiff has not 15 pled sufficient facts under a cognizable legal theory of a civil RICO violation to survive 16 Defendants’ Motion to Dismiss.1 The Court dismisses Plaintiff’s RICO claim with 17 prejudice because Plaintiff was already given leave to amend, (see Doc. 10), and has 18 alleged the same factual predicate for her RICO claim; and under any version of the facts 19 alleged by Plaintiff, the alleged conduct of Defendants does not constitute an indictable act 20 under section 1961(1) and so amendment would be futile. See Doe v. Fed. Dist. Ct., 467 21 Fed. Appx. 725, 728 (9th Cir. 2012) (listing “repeated failure to cure deficiencies by 22 amendments previously allowed” and “futility of amendment” as factors weighing against 23 granting successive amendment) (quoting Forman v. Davis, 371 U.S. 178, 182 (1962)). 24 B. ADA Claims 25 Plaintiff alleges that she suffers from “anxiety causing digestive issues.” (Doc. 17 26 at 4). Plaintiff further alleges Defendants engaged in the following discriminatory conduct: 27 1 Although Plaintiff also does not allege her property or business was injured by 28 Defendants’ alleged violation of section 1962, the Court need not address this insufficiency due to Plaintiff’s failure to adequately plead a civil RICO claim. 1 “termination of my employment,” “failure to promote me,” and “retaliation.” (Id.) 2 The Americans with Disabilities Act (“ADA”) provides that “[n]o covered entity 3 shall discriminate against a qualified individual on the basis of disability in regard to job 4 application procedures, the hiring, advancement, or discharge of employees, employee 5 compensation, job training, and other terms, conditions, and privileges of employment.” 6 42 U.S.C. § 12112. To prevail on an ADA claim of unlawful discharge or failure to 7 promote, “the plaintiff must establish a prima facie case by showing that: (1) [she] is a 8 disabled person within the meaning of the statute; (2) [she] is a qualified individual with a 9 disability; and (3) [she] suffered an adverse employment action because of [her] disability.” 10 Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884, 891 (9th Cir. 2001). 11 Additionally, the ADA prohibits an employer from retaliating against an employee 12 who seeks an accommodation in good faith. Coons v. Sec’y of U.S. Dep’t of Treasury, 383 13 F.3d 879, 887 (9th Cir. 2004). To prevail on an ADA claim of retaliation, Plaintiff must 14 show: “(1) involvement in a protected activity, (2) an adverse employment action[,] and 15 (3) a causal link between the two.” Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1269 16 (9th Cir. 2009) (quoting Coons, 383 F.3d at 887). 17 Here, Plaintiff states that she was provided an accommodation for her alleged 18 disability and that at that time, she “started to recognize vehicles and their similarities and 19 took to social media about it.” (Doc. 17 at 7). Plaintiff states that Defendants accused her 20 of “stealing from Waste Management’s time and violating [her] accommodations by being 21 on social media during these times.” (Id.) After this meeting and a series of alleged 22 communications between Plaintiff and representatives from WM and New York Life, 23 Plaintiff “took to social media again to vent.” (Id. at 8). Plaintiff then alleges she was 24 terminated for “speaking out on Social Media and that was a violation of [WM’s] policy.” 25 (Id.) Plaintiff believes she “was singled out and chosen to be picked on, for whatever reason 26 never explained. Except THE REASONABLE explanation being due to excessive time off 27 the phone, DUE to [her] disability.” (Id.) She also believes she was retaliated against after 28 her first meeting with supervisors and subsequent alleged ethics investigation. (Id. at 9). 1 Plaintiff has failed to establish the elements necessary for disability discrimination 2 under the ADA. Notably, Plaintiff has failed to demonstrate that she suffered an adverse 3 employment action because of her disability. By her own admission, Plaintiff states she 4 was fired for violation of Defendant’s social media policy, not because of her disability. 5 See Newland v. Dalton, 81 F.3d 904, 906 (9th Cir. 1996) (affirming dismissal based on 6 plaintiff’s admission that he was terminated for his conduct rather than his purported 7 disability). Plaintiff has also failed to establish the elements necessary to state a claim for 8 retaliation under the ADA. Plaintiff has not established any link between a request for a 9 reasonable accommodation and an adverse employment action. She states that she was 10 allegedly retaliated against for “turn[ing] them into the ethics Department,” not in response 11 to her disability or request for accommodations.2 There is no causal link established. 12 Plaintiff has failed to state claims for disability discrimination and retaliation under the 13 ADA and, accordingly, the Court dismisses both claims without prejudice. 14 C. Leave to Amend 15 The Ninth Circuit Court of Appeals has instructed district courts to grant leave to 16 amend, sua sponte, when dismissing a case for failure to state a claim, “unless [the court] 17 determines that the pleading could not possibly be cured by the allegation of other facts.” 18 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quoting Doe v. United 19 States, 58 F.3d 494, 497 (9th Cir. 1995)). Futility alone justifies denying leave to amend. 20 Bonin v. Calderon, 59 F.3d 815, 845 (1995). Here, the Court cannot conclude that no facts 21 could be alleged against Defendants that would state a claim.3 Therefore, the Court will 22 grant Plaintiff leave to amend her ADA claims. However, as previously stated, see Section 23 III.A, supra, amendment of Plaintiff’s RICO claim would be futile because under no 24 2 “The ADA prohibits an employer from retaliating against an employee who seeks a 25 reasonable accommodation in good faith.” Valtierra v. Medtronic, Inc., 232 F. Supp. 3d 1117, 1126 (D. Ariz. 2017). 26 3 For example, an ADA interference claim requires a showing that an individual “(1) exercised or enjoyed a right expressly granted by the ADA, such as requesting or receiving 27 an accommodation; (2) [she] was subjected to interference, coercion or threats in relation to the exercise or enjoyment of that right; and, (3) [she] suffered ‘a distinct and palpable 28 injury’ as a result.” Fed. R. Civ. P. 8(a); Brown v. City of Tucson, 336 F.3d 1181, 1191–92 (9th Cir. 2003) (citing Walker v. City of Lakewood, 272 F.3d 1114, 1123 (9th Cir. 2001)). || version of the facts would Defendants’ alleged conduct constitute an indictable offense || under 18 U.S.C. § 1961(1). As such, the Court denies Plaintiff leave to amend her RICO 3 || claim. 4] IV. CONCLUSION 5 Based on the foregoing, 6 IT IS ORDERED Defendants’ Motion to Dismiss (Doc. 18) is GRANTED. 7 IT IS FURTHER ORDERED that Plaintiff shall file a Second Amended 8 || Complaint that complies with the requirements of Federal Rules of Civil Procedure 8(a) 9|| and 10(b) and shall set forth the factual bases for Plaintiff's claims within fourteen (14) || days of the date of this Order. 11 IT IS FURTHER ORDERED that if Plaintiff fails to file an amended complaint 12 || within fourteen (14) days, this case will be dismissed for failure to state a claim and the 13 || Clerk of the Court shall enter judgment accordingly. 14 Dated this 22nd day of January, 2024. 15 16 i C 17 James A. Teilborg 18 Senior United States District Judge 19 20 21 22 23 24 25 26 27 28

-8-