Doria v. Yelp Incorporated

• Court: District Court, D. Arizona
• Decided: April 23, 2024
• Docket: 3:23-cv-08112
• Status: Unknown

Opinion

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

9 Daniel T Doria, No. CV-23-08112-PCT-SMB

10 Plaintiff, ORDER

11 v.

12 Yelp Incorporated,

13 Defendant. 14 15 Pending before the Court is Defendant’s Motion to Dismiss Plaintiff’s Second 16 Amended Complaint (Doc. 14). Plaintiff filed a response (Doc. 16), to which Defendant 17 replied (Doc. 18.) After considering the parties’ arguments and relevant case law, the Court 18 will grant Defendant’s Motion. 19 I. BACKGROUND 20 This case arises from Plaintiff’s former employment with Defendant as an Account 21 Executive. Plaintiff worked at Yelp from January 2022 to May 2022. (Doc. 1 at 8.) 22 Following his termination and subsequent conversations with Defendant, Plaintiff filed a 23 Complaint. (Doc. 1.) Plaintiff has since amended his Complaint twice, with the current 24 operative Complaint being the Second Amended Complaint (“SAC”), which alleges that 25 Defendant violated the Americans with Disabilities Act (“ADA”) and the Arizona Civil 26 Rights Act (“ACRA”). (Doc. 12; Doc. 13 at 9–10 ¶¶ 45–50.) In the SAC, Plaintiff alleges 27 that he internally reported fraud regarding Yelp’s scripted sales model and tuition 28 reimbursement program. (Doc. 13 at 4 ¶ 16, 5 ¶ 19.) Plaintiff asserts that Defendant 1 brushed off his complaints and threatened to fire him. (Id. at 4 ¶ 17; 5 ¶ 20.) Plaintiff 2 claims that Defendant’s response sent him into a depressed and paranoid episode. (Id. at 4 3 ¶ 17.) In turn, Plaintiff requested an accommodation, which he alleges was denied. (Id. at 4 5 ¶¶ 21–22.) Plaintiff then formally requested leave through short term disability, which 5 was granted. (Id. at 5–6 ¶¶ 24–25.) However, Defendant terminated Plaintiff’s 6 employment. (Id. at 7 ¶ 36.) 7 Shortly after terminating Plaintiff, Defendant offered Plaintiff a Separation 8 Agreement (“the Agreement”). (Doc. 14-2 at 2–8.) Initially, Defendant offered to pay 9 Plaintiff severance equivalent to four weeks of pay in exchange for signing the Agreement. 10 (Id. at 3.) However, Plaintiff rejected this initial offer. (Id.) After further negotiations, 11 Defendant increased its offer to six weeks of pay and sent the revised Agreement to 12 Plaintiff on June 21, 2022. (Id.) Plaintiff then signed the Agreement on June 22, 2022. 13 (Id.) The Agreement states, in relevant part: 14 You hereby generally and completely release Yelp and its predecessors, 15 successors, affiliates, parent and subsidiary entities, as well as each of their 16 current and former directors, officers, employees, shareholders, partners, agents, attorneys, insurers, affiliates and assigns (collectively, the “Released 17 Parties”) of and from any and all claims, liabilities and obligations, both 18 known and unknown, that arise out of or are in any way related to events, acts, conduct or omissions that occurred prior to or on the date that you sign 19 this Agreement (collectively, the “Released Claims”) . . . 20 The Released Claims include, but are not limited to: (i) all claims arising out 21 of or in any way related to your employment with Yelp, or the termination 22 of that employment . . . [including] all federal, state and local statutory claims, including, without limitation, claims for discrimination, 23 harassment, retaliation . . . or other claims arising under . . . the federal 24 Americans with Disabilities Act [or] the Arizona Civil Rights Act. . . .

25 (Id. at 6–7.) Both parties signed this agreement. (Id. at 8.) However, next to his signature, 26 Plaintiff included the words “in protest.” (Id. at 8.) In response, Defendant contacted 27 Plaintiff via email to clarify that the Agreement (1) is a final, binding, and enforceable 28 contract; (2) that Plaintiff had seven days to decide whether he wanted to sign it; (3) that 1 Plaintiff entered into the Agreement of his own free will, and (4) that Plaintiff’s inclusion 2 of “in protest” does not change any of the above facts. (Id. at 10.) Plaintiff replied “Yep, 3 that’s all understood.” (Id.) 4 Plaintiff also received a Dismissal and Notice of Rights letter from the United States 5 Equal Employment Opportunity Commission (“EEOC”). (Doc. 15-2 at 2–3.) This letter, 6 issued on February 21, 2023, required Plaintiff to file his suit within 90 days of receiving 7 it. (Id.) Plaintiff received a similar Notice of Charge of Discrimination and Charge of 8 Discrimination from the Arizona Attorney General’s Civil Rights Division in regard to his 9 ACRA claim. (Doc. 13-1.) This letter gave Plaintiff one year from the date he filed his 10 charge with the Civil Rights Division to file a lawsuit. (Id.) Plaintiff filed this lawsuit on 11 June 14, 2023. (Doc. 1.) Defendant now seeks to dismiss the SAC. (Doc. 14.) 12 II. LEGAL STANDARD 13 Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss a 14 claim for lack of subject-matter jurisdiction. “Federal courts are courts of limited 15 jurisdiction” and may only hear cases as authorized by the Constitution or Congress. 16 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A court has subject- 17 matter jurisdiction over claims that “aris[e] under the Constitution, laws, or treaties of the 18 United States” and over “civil actions where the matter in controversy exceeds the sum or 19 value of $75,000, exclusive of interest and costs, and is between” diverse parties. 28 U.S.C. 20 §§ 1331, 1332(a). Because our jurisdiction is limited, it is to be presumed that a cause lies 21 outside of it, and the burden of establishing jurisdiction is on the party asserting it. 22 Kokkonen, 511 U.S. at 377. 23 “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for 24 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A facial attack “asserts that the 25 allegations contained in a complaint are insufficient on their face to invoke federal 26 jurisdiction.” Id. In this circumstance, the court accepts the plaintiff’s allegations as true 27 and draws all reasonable inferences in the plaintiff’s favor, then “determines whether the 28 allegations are sufficient as a legal matter to invoke the court’s jurisdiction.” Leite v. Crane 1 Co., 749 F.3d 1117, 1121 (9th Cir. 2014). “A ‘factual’ attack, by contrast, contests the 2 truth of the plaintiff’s factual allegations, usually by introducing evidence outside the 3 pleadings.” Id. In a facial attack, the Court’s inquiry is confined to the allegations in the 4 complaint, while a factual attack permits the court to look beyond the complaint. Savage 5 v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2004). 6 Further, to survive a Rule 12(b)(6) motion for failure to state a claim, a complaint 7 must meet the requirements of Rule 8(a)(2). Rule 8(a)(2) requires a “short and plain 8 statement of the claim showing that the pleader is entitled to relief,” so that the defendant 9 has “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. 10 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 11 (1957)). This requirement is met if the pleader sets forth “factual content that allows the 12 court to draw the reasonable inference that the defendant is liable for the misconduct 13 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements 14 of a cause of action, supported by mere conclusory statements, do not suffice.” Id. 15 Plausibility does not equal “probability,” but requires “more than a sheer possibility that a 16 defendant has acted unlawfully.” Id. A dismissal under Rule 12(b)(6) for failure to state 17 a claim can be based on either (1) the lack of a cognizable legal theory or (2) insufficient 18 facts to support a cognizable legal claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 19 699 (9th Cir. 1988). A complaint that sets forth a cognizable legal theory will survive a 20 motion to dismiss if it contains sufficient factual matter, which, if accepted as true, states 21 a claim to relief that is “plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 22 550 U.S. at 570). “Where a complaint pleads facts that are ‘merely consistent with’ a 23 defendant’s liability, it ‘stops short of the line between possibility and plausibility of 24 ‘entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). 25 In ruling on a Rule 12(b)(6) motion to dismiss, the well-pled factual allegations are 26 taken as true and construed in the light most favorable to the nonmoving party. Cousins v. 27 Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, legal conclusions couched as 28 factual allegations are not given a presumption of truthfulness, and “conclusory allegations 1 of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto 2 v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). A court ordinarily may not consider evidence 3 outside the pleadings in ruling on a Rule 12(b)(6) motion to dismiss. See United States v. 4 Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). “A court may, however, consider materials— 5 documents attached to the complaint, documents incorporated by reference in the 6 complaint, or matters of judicial notice—without converting the motion to dismiss into a 7 motion for summary judgment.” Id. at 908. 8 III. DISCUSSION 9 The Court will discuss three preliminary issues, then turn to the merits of the 10 Motion. 11 A. Sur-Reply 12 Plaintiff then filed a response to Defendant’s reply brief. (See Doc. 19). Plaintiff 13 has effectively attempted to file a sur-reply—an additional response to the moving party’s 14 reply. Local Rule 7.2 permits motions, responses, and replies. See LRCiv 7.2 (a), (c)–(d). 15 Sur-replies are impermissible, as they are not contemplated by the local rules. See Armenta 16 v. Spencer, No. CV-16-00697-TUC-DCB, 2018 WL 4698648, at *1 (D. Ariz. Oct. 1, 2018) 17 (“There is no provision for Sur-Replies.”). Therefore, the Court will strike this response 18 (Doc. 19) in its entirety. 19 B. Judicial Notice 20 Defendant also filed a Request for Judicial Notice in Support of their Motion to 21 Dismiss Plaintiff’s Second Amended Complaint. (Doc. 15.) This request asks the Court 22 to take judicial notice of the Notice of Charge of Discrimination and Charge of 23 Discrimination that Plaintiff filed with the Arizona Civil Rights Division (“ACRD”), as 24 well as the Letter and Dismissal and Notice of Rights from the EEOC. (Id. at 1–2.) This 25 letter from the EEOC is better known as a “right to sue” letter. 26 Generally, judicial notice is appropriate for “records and reports of administrative 27 bodies.” United States v. 14.02 Acres of Land More or Less in Fresno Cnty., 547 F.3d 943, 28 955 (9th Cir. 2008) (cleaned up). Courts regularly take judicial notice of certain EEOC 1 documents. See, e.g., Reed v. Cognizant Tech. Sols., 2020 WL 3268691, No. CV-20- 2 00061-PHX-SMB, at *1 n.1 (D. Ariz. June 16, 2020) (taking judicial notice of “EEOC 3 complaint and the right-to-sue letter”); Mazzorana v. Emergency Physicians Med. Grp., 4 Inc., No. 2:12-CV-1837 JCM (PAL), 2013 WL 4040791, at *5 (D. Nev. Aug. 6, 2013) 5 (taking judicial notice of EEOC charge). Additionally, the Court may consider matters of 6 judicial notice without converting this Motion into a motion for summary judgment. 7 Ritchie, 342 F.3d at 908. 8 Here, both documents are communications from administrative bodies to Plaintiff 9 that allowed him to file these claims. Moreover, their accuracy is not in dispute. Therefore, 10 the Court will take judicial notice of Plaintiff’s Notice of Charge of Discrimination and 11 Charge of Discrimination that Plaintiff filed with the Arizona Civil Rights Division 12 (“ACRD”) and the right to sue letter from the EEOC. (Doc. 15-1; Doc. 15-2.) 13 C. Local Rule 12.1(c) 14 In his response, Plaintiff asserts that Defendant failed to meet and confer in good 15 faith regarding this Motion in violation of Local Rule 12.1(c). (Doc. 16 at 5.) This rule 16 requires the moving party to include a certification that before filing the motion, they 17 “notified the opposing party of the issues asserted in the motion and the parties were unable 18 to agree that the pleading was curable in any part by a permissible amendment offered by 19 the pleading party.” LRCiv. 12.1(c). In their reply, Defendant included the email 20 correspondence between the parties conferring on this topic. (Doc. 18-1.) The Court has 21 reviewed this correspondence and Defendant’s initial certification. (Id.; Doc. 14-1.) The 22 Court finds that Defendant complied with the requirements of Local Rule 12.1(c). 23 Therefore, the Court will not strike Defendant’s Motion. 24 D. The Agreement 25 Defendant primarily argues that through the Agreement, Plaintiff released all claims 26 asserted in his SAC. (Doc. 14 at 10–12.) Therefore, Defendant contends that dismissal is 27 required under either Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6). (Id.) Plaintiff 28 counters that he was forced to “sign away [his] rights to a claim the company had good 1 cause to believe [he] would later bring.” (Doc. 16 at 3.) Plaintiff also argues that he told 2 Defendant he would not waive his rights and that the initial offer of payment was given to 3 him “without conditions.” (Id.) In sum, Plaintiff states he signed the Agreement “in 4 protest, knowing that it is illegal to extort a waiver of rights in exchange for labor already 5 owed.” (Id.) 6 Plaintiff does not dispute that he signed the Agreement. (See Doc. 16.) He also 7 does not dispute the Agreement’s meaning. The only argument Plaintiff appears to make 8 is that the Agreement lacked consideration due to his disagreement over the nature of the 9 payment. (Doc. 16 at 3.) However, this argument is undercut by the facts. First, the parties 10 negotiated the terms of this payment and agreed to six weeks of pay. Once this term was 11 reached, Plaintiff signed the Agreement the following day. (See Doc 14-2 at 8.) This 12 negotiation period and the email correspondence both show that Plaintiff was not coerced 13 into signing this Agreement. Additionally, Plaintiff’s inclusion of the words “in protest” 14 does not render the Agreement unenforceable. Plaintiff appears to have known this, as he 15 replied that he “understood” that writing “in protest” next to his signature did not change 16 the enforceability of the Agreement. (Id. at 10.) 17 In short, Plaintiff voluntarily entered into the Agreement and knew its effect on his 18 claims. This Agreement constitutes a valid release of the claims at issue, and therefore 19 dismissal under Rule 12(b)(6) is required. See Skilstaf, Inc. v. CVS Caremark Corp., 669 20 F.3d 1005, 1008, 1014–20 (9th Cir. 2012) (affirming a Rule 12(b)(6) dismissal pursuant to 21 an enforceable release); Marder v. Lopez, 450 F.3d 445, 447–54 (9th Cir. 2006) (same). 22 Therefore, the Court will dismiss these claims, and in turn the SAC, with prejudice. 23 Further, due to this dismissal under Rule 12(b)(6), the Court will not analyze potential 24 dismissal under Rule 12(b)(1). 25 E. Time Barred Claims 26 As discussed, a party has 90 days to file a lawsuit after receiving a right to sue letter 27 from the EEOC. Plaintiff was required to file his initial Complaint within ninety days of 28 receiving notice of the EEOC’s decision. Surrell v. California Water Service Co., 518 F.3d 1 1097, 1104 (9th Cir. 2008) (“Once a person receives an EEOC right-to-sue letter, she has 2 90 days to file suit”) (citing 42 U.S.C § 2000e-5(f)(1)); see also Nelmida v. Shelly 3 Eurocars, Inc., 112 F.3d 380, 383 (9th Cir. 1997) (“This ninety-day period is a statute of 4 limitations. Therefore, if a claimant fails to file the civil action within the ninety-day period, 5 the action is barred.”) (cleaned up). Here, Plaintiff filed his initial Complaint on June 14, 6 2023. (Doc. 1.) This was 113 days after he received his right to sue letter from the EEOC, 7 which was issued on February 21, 2023. (Doc. 15-2.) This also means that the Complaint 8 was filed at least 20 days after his 90-day period to file ADA claims. (Id.) Accordingly, 9 Plaintiff’s ADA claims are untimely. 10 An untimely claim is not cognizable, and therefore it must be dismissed under Rule 11 12(b)(6). See Hoover v. Swift Transportation Co., No. CV-18-03314-PHX-JAT, 2019 WL 12 6135122, at *2 (D. Ariz. Nov. 19, 2019) (discussing dismissal under this Rule “when it is 13 clear from the face of the complaint that a plaintiff’s claims fall outside the applicable 14 statute of limitations”); see also Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 15 1980). Plaintiff attempts to circumvent this issue by arguing that his claims are timely 16 based on the ACRD’s Notice of Right to Sue. (Doc. 16 at 4.) However, this notice has no 17 effect on Plaintiff’s ADA claims. As the Ninth Circuit has noted, a state agency’s right to 18 sue letter does not trigger the 90-day period to sue under the ADA—only a right to sue 19 letter from the EEOC has this effect. Scott v. Gino Morena Enters., LLC, 888 F.3d 1101, 20 1111 (9th Cir. 2018). 21 In short, Plaintiff’s ADA claims are time-barred. To the extent these claims are not 22 barred by the Agreement, they are untimely and therefore dismissed pursuant to Rule 23 12(b)(6). 24 IV. CONCLUSION 25 For the above reasons, 26 IT IS HEREBY ORDERED granting Defendant’s Motion to Dismiss Plaintiff’s 27 Second Amended Complaint (Doc. 14). 28 IT IS FURTHER ORDERED striking Plaintiff’s sur-reply (Doc. 19). 1 IT IS FURTHER ORDERED directing the Clerk of Court to enter final judgment 2 || consistent with this Order and close this case. 3 Dated this 22nd day of April, 2024. 4 5 “Ss > fonorable Susan M. Brnovich = 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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