Hernandez v. Scottsdale Hotel Group LLC

Opinion

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

9 Carlos Hernandez, No. CV-20-00349-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 Scottsdale Hotel Group LLC, et al.,

13 Defendants. 14 15 Plaintiff Carlos Hernandez (“Plaintiff”) has asserted federal civil rights claims and 16 a state-law defamation claim against his former employer, Scottsdale Hotel Group, LLC 17 (“The Scott”), and his former supervisor, Anne Schwanz (“Schwanz”) (collectively, 18 “Defendants”). (Doc. 1.) Now pending before the Court are Defendants’ motions to 19 dismiss the defamation claim. (Docs. 9, 22.) For the following reasons, the motions will 20 be granted. 21 BACKGROUND 22 I. Plaintiff’s Allegations 23 The following allegations, taken as true, are derived from the complaint. (Doc. 1.) 24 In December 2017, Plaintiff began working as an on-call banquet server at The Scott, a 25 hotel in Scottsdale, Arizona. (Id. ¶¶ 2, 9.) The Scott employed three full-time banquet 26 servers and about 19 on-call banquet servers. (Id. ¶ 9.) On-call banquet servers were not 27 guaranteed a 40-hour work week and typically worked two to four days per week. (Id. 28 ¶ 10.) Plaintiff and other on-call servers aspired to one of the three full-time positions, 1 which could earn close to $100,000 per year. (Id.) There were also three “Banquet 2 Captains,” all of whom were Caucasian. (Id. ¶ 9.) Most of the servers were Hispanic. (Id.) 3 In February 2019, Plaintiff complained to his superiors of being sexually harassed 4 by one of the Banquet Captains. (Id. ¶ 11-12.)1 The Banquet Captain was made to 5 apologize to Plaintiff, but Plaintiff continued to work under this Banquet Captain, who 6 proceeded to treat Plaintiff harshly and watch him closely. (Id.) 7 At an unspecified time, the Director of Banquets, who had a supervisory role over 8 all staff members, told Plaintiff she intended to offer him a full-time position starting in 9 September 2019. (Id. ¶ 10.) However, in July 2019, that Director “left the employ of the 10 Scott” and was thereafter replaced by Schwanz. (Id.) Plaintiff noticed that after Schwanz 11 took over, she gave more shifts to a Caucasian, female on-call server at Plaintiff’s expense. 12 (Id. ¶ 13.) 13 On September 5, 2019, Plaintiff emailed Schwanz to ask why the other employee 14 received more shifts and to say he would like the same opportunities. (Id. ¶ 14.) Schwanz’s 15 email response was positive, telling Plaintiff she appreciated his directness because she did 16 not tolerate negativity. (Id.) Plaintiff worked one shift after this email exchange without 17 incident. (Id. ¶ 15.) 18 On September 11, 2019, during his next shift, Plaintiff and a fellow employee were 19 discussing changes to the workplace since Schwanz took over as Director of Banquets. 20 (Id.) When Schwanz heard of this discussion, she called Plaintiff into the office of The 21 Scott’s human resources manager, Nancy Silver (“Silver”), and fired Plaintiff for having 22 “a negative conversation.” (Id. ¶¶ 9, 15.) The fellow employee, who was not Hispanic, 23 was not fired despite being involved in the same “negative” conversation. (Id.) 24 During the meeting in Silver’s office, Schwanz also mentioned Plaintiff’s 25 September 5 email and stated that “she actually did not appreciate the email . . . and was 26 hostile about it.” (Id. ¶ 15.) Silver, in turn, agreed with Schwanz that the email was “out 27 of line” and stated that Plaintiff was “nobody to ask his manager anything.” (Id.)

28 1 The complaint contains two paragraphs marked with the number twelve, both of which address this incident. (Doc. 1 at 4-5.) 1 The next day, September 12, 2019, Schwanz summoned all the employees under 2 her supervision to a meeting. (Id. ¶ 16.) Schwanz told the employees about Plaintiff’s 3 September 5 email, saying that it was “rude, threatening and disrespectful” and “would not 4 be tolerated.” (Id.) Plaintiff alleges these statements were defamatory, harmed his 5 professional reputation, and caused him emotional distress and worry. (Id. ¶ 17.) 6 II. Procedural History 7 On February 17, 2020, Plaintiff filed his complaint. (Doc. 1.) 8 On April 14, 2020, Schwanz filed her motion to dismiss. (Doc. 9.) Thereafter, 9 Plaintiff filed a response (Doc. 10) and Schwanz filed a reply (Doc. 11). 10 On July 6, 2020, The Scott filed its motion to dismiss. (Doc. 22.) Thereafter, 11 Plaintiff filed a response (Doc. 24) and The Scott filed a reply (Doc. 26). 12 DISCUSSION 13 I. Legal Standard 14 “[T]o survive a motion to dismiss under Rule 12(b)(6), a party must allege 15 ‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 16 face.’” In re Fitness Holdings Int’l, Inc., 714 F.3d 1141, 1144 (9th Cir. 2013) (quoting 17 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the 18 plaintiff pleads factual content that allows the court to draw the reasonable inference that 19 the defendant is liable for the misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at 678). 20 “[A]ll well-pleaded allegations of material fact in the complaint are accepted as true and 21 are construed in the light most favorable to the non-moving party.” Id. at 1144-45 (citation 22 omitted). However, the court need not accept legal conclusions couched as factual 23 allegations. Iqbal, 556 U.S. at 679-80. Moreover, “[t]hreadbare recitals of the elements of 24 a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 679. 25 The court also may dismiss due to “a lack of a cognizable legal theory.” Mollett v. Netflix, 26 Inc., 795 F.3d 1062, 1065 (9th Cir. 2015) (citation omitted). 27 … 28 … 1 II. Analysis 2 Defendants contend they are entitled to dismissal of the defamation claim because 3 Schwanz’s description of Plaintiff’s email as “rude, threatening and disrespectful” was a 4 non-actionable statement of opinion. (Doc. 9 at 2-5; Doc. 22 at 3-6.) In response, Plaintiff 5 concedes that “rude” and “disrespectful” are non-actionable words of opinion but argues 6 the word “threatening” is defamatory because it implies that Plaintiff threatened Schwanz. 7 (Doc. 10 at 2-3; Doc. 24 at 2-3.) 8 Under Arizona law, “[t]o establish a prima facie case for defamation, a plaintiff 9 must establish the existence of ‘(1) a false defamatory statement, (2) publication to a third 10 party, and (3) negligence on the part of the publisher.’” Hamilton v. Yavapai Cmty. Coll. 11 Dist., 2016 WL 5871502, *2 (D. Ariz. 2016) (quoting Boswell v. Phx. Newspapers, Inc., 12 730 P.2d 178, 180 (Ariz. Ct. App. 1985)). To “survive [a] motion to dismiss,” a plaintiff 13 must show that the alleged statements “are reasonably capable of sustaining a defamatory 14 meaning” and “are not mere comment within the ambit of the First Amendment.” Knievel 15 v. ESPN, 393 F.3d 1068, 1073-74 (9th Cir. 2005) (internal quotation marks omitted). 16 “Only statements which may be reasonably interpreted as factual assertions, not simply 17 statements of opinion, are actionable as defamation.” Breeser v. Menta Grp., Inc., 934 F. 18 Supp. 2d 1150, 1162 (D. Ariz. 2013). See also Burns v. Davis, 993 P.2d 1119, 1129 (Ariz. 19 Ct. App. 1999) (“Statements that can be interpreted as nothing more than rhetorical 20 political invective, opinion, or hyperbole are protected speech, but false assertions that state 21 or imply a factual accusation may be actionable.”). “To determine whether a statement can 22 be reasonably interpreted as a factual assertion, a court must examine the totality of the 23 circumstances in which it was made.” Donahoe v. Arpaio, 869 F. Supp. 2d 1020, 1062 (D. 24 Ariz. 2012) (internal quotation marks omitted). Relevant considerations include whether 25 the “general tenor” of the statement suggests that the speaker was asserting objective fact, 26 whether the speaker used figurative or hyperbolic language, and whether the statement is 27 susceptible of being proved true or false. Knievel, 393 F.3d at 1075. 28 Plaintiff wisely concedes that two of the adjectives Schwanz used to describe his 1 email—“rude” and “disrespectful”—amount to non-actionable opinion, so the sufficiency 2 of Plaintiff’s defamation claim stands or falls on Schwanz’s use of the word “threatening.” 3 The Court concludes that, just like the two adjectives that surround it, the word 4 “threatening” in this context amounts to an opinion statement that cannot support a 5 defamation claim. The tenor of Schwanz’s statement indicates that she was expressing a 6 subjective opinion rather than making an assertion of objective fact. She called the email 7 “rude, threatening and disrespectful,” which expresses a personal impression of the email. 8 Turner v. Devlin, 848 P.2d 286, 292 (Ariz. 1993) (holding that letter describing police 9 conduct as “rude and disrespectful” with a “manner border[ing] on police brutality” was 10 “plainly” based on a “personal impression” and therefore non-actionable). Further, in this 11 context, the term “threatening” is not provable or falsifiable. It does not suggest that 12 Plaintiff actually made a threat, but rather that Schwanz perceived the email to be 13 “threatening” (as well as rude and disrespectful). 14 Arizona courts have concluded that similar statements cannot support a defamation 15 claim. In Glaze v. Marcus, a law school dean called a building safety coordinator’s 16 communications “unprofessional, insubordinate and abusive.” 729 P.2d 342, 344 (Ariz. 17 Ct. App. 1986).2 The court held that such language was “pure opinion.” Id. This was true 18 even though the term “abusive” could, under a different set of circumstances, imply that 19 the plaintiff had actually committed some form of physical abuse. Cf. Turner, 848 P.2d at 20 293 (“We agree . . . that an allegation of police brutality might, in some cases, be read as

21 2 The Court notes that Glaze was decided before Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), which held there was no “wholesale defamation exemption for anything 22 that might be labeled ‘opinion.’” Id. at 18. But Milkovich retained the distinction between statements that imply a factual assertion, and thus can be proved true or false, and instances 23 of “loose, figurative, or hyperbolic language” or instances where the “general tenor” of the statement negates the impression of a factual assertion. Id. at 21. Subsequent Arizona and 24 Ninth Circuit decisions continue to analyze whether a statement is unfalsifiable commentary or implies a factual assertion. See, e.g., Knievel, 393 F.3d at 1073-74 (“In 25 order to survive ESPN’s motion to dismiss, the Knievels must not only establish that the photograph and caption about which they complain are reasonably capable of sustaining a 26 defamatory meaning, they must also show that they are not mere comment within the ambit of the First Amendment.”) (citations and internal quotation marks omitted); Desert Palm 27 Surgical Grp., P.L.C. v. Petta, 343 P.3d 438, 449 (Ariz. Ct. App. 2015) (“Statements that can be interpreted as nothing more than rhetorical political invective, opinion, or hyperbole 28 are protected speech, but false assertions that state or imply a factual accusation may be actionable.”) (quoting Burns, 993 P.2d at 1129). 1 an allegation of physical abuse, but we do not believe it can reasonably be read that way in 2 this case.”). In the context of a supervisor commenting on an interaction with a 3 subordinate, however, it expressed only the speaker’s subjective impression of the 4 subordinate’s communications. Glaze, 729 P.2d at 344. So, too, here. Under a different 5 set of circumstances, the word “threatening” might connote that a threat was made, but 6 under these circumstances, such an inference would not be reasonable. Turner, 848 P.2d 7 at 293. It would not be possible to prove or disprove Schwanz’s subjective impression of 8 the email as threatening. Id. at 292 (“We can conceive of no objective criteria that a jury 9 could effectively employ to determine the accuracy of [defendant’s] assessment.”). 10 Finally, courts outside Arizona, when addressing similar uses of the word 11 “threatening,” have concluded that this description does not amount to defamation. See, 12 e.g., Galland v. Johnston, 2015 WL 1290775, *5-6 (S.D.N.Y. 2015) (statements that 13 defendant found plaintiff’s emails to be “threatening and disturbing” and that plaintiff 14 “chooses to run his business in a threatening manner” were “not readily understood as 15 having a precise meaning, nor are they susceptible of being proven false” because “any 16 reasonable reader would have, in context, understood the letter to be expressing conjecture 17 and speculation, not fact”); Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1249-50 18 (D.C. 2016) (statements describing plaintiff’s letter as “laughably threatening” and 19 “pathetically lame chest-thumping” did not “contain defamatory assertions of fact that were 20 provably false at the time they were made”); Ward v. Jeff Props., LLC, 2010 WL 346459, 21 *5 (N.C. Ct. App. 2010) (“In this context . . . defendant’s characterization of plaintiff’s 22 conduct as harassment, pestering, threatening, irritating, and nonsense amounts to 23 statements of opinion or rhetorical hyperbole that are not actionable . . . .”); Benigni v. 24 County of St. Louis, 1995 WL 146822, *1 (Minn. Ct. App. 1995) (“Sharp’s statement that 25 Benigni was harassing and threatening was his characterization of Benigni’s demeanor and 26 behavior. Such characterizing of another’s demeanor and behavior is a matter of opinion 27 and thus not subject to a defamation claim.”). 28 For these reasons, the Court agrees with Defendants that Plaintiff’s defamation 1 claim must be dismissed. Given this determination, it is unnecessary to address 2 Defendants’ alternative grounds for seeking dismissal of that claim. 3 The dismissal will be without leave to amend. In their respective motions, each 4 Defendant specifically requests that the dismissal be “with prejudice.” (Doc. 9 at 1, 6; Doc. 5 22 at 1, 7.) In her response briefs, Plaintiff does not address, and thus implicitly assents to, 6 Defendants’ position of this issue. Nor does Plaintiff request leave to amend in the event 7 of dismissal, and it appears that leave to amend would be futile—Plaintiff has not identified 8 any new facts she might be able to allege in an amended complaint that would cure the 9 deficiencies highlighted above. 10 The dismissal of the defamation claim also means that Schwanz will be dismissed 11 as a party. In her motion, Schwanz asserts that, because “the only claim against [her] is 12 the . . . defamation claim,” she should be “dismissed as a defendant” once her motion is 13 granted. (Doc. 9 at 6.) In response, Plaintiff once again does not address, and thus 14 implicitly assents to, this assertion.3 15 Defendants also make cursory requests for the attorneys’ fees and costs associated 16 with their motions. (Doc. 9 at 6; Doc. 22 at 7.) These requests will be denied without 17 prejudice. Rule 54(d)(2)(B)(ii) of the Federal Rules of Civil Procedure requires a party 18 seeking attorneys’ fees to file a motion that, among other things, “specif[ies] the 19 judgment and the statute, rule, or other grounds entitling the movant to the 20 award.” Id. (emphasis added). Many courts have interpreted this language as requiring 21 parties to wait until judgment has been entered before filing a fee-related motion. See, 22 e.g., Double J Inv., LLC v. Automation Control & Info. Sys. Corp., 2014 WL 12672618, 23 3 The complaint is not a model of clarity as to whether Counts 1-5 (the federal civil 24 rights claims) are asserted against both Defendants or only against The Scott. On the one hand, the introductory paragraph suggests that The Scott is the primary defendant in this 25 case (Doc. 1 at 1) and Count 6, which is the defamation claim, is the only count in which Schwanz is specifically identified as a defendant (id. at 10 [“Defamation against Anne 26 Schwanz and The Scott only”]). On the other hand, a different paragraph buried in the middle of the complaint, which is entitled “Relief Requested,” can be read as suggesting 27 that all six counts are being asserted “against Defendants.” (Id. at 8.) In any event, because Plaintiff does not dispute Schwanz’s contention that she is only named as a defendant in 28 Count 6, the dismissal of that count means Schwanz is no longer a party. 1} *1 (D. Ariz. 2014) (“[A]ttorneys’ fees and related non-taxable expenses may only be 2|| awarded following a final judgment. A final judgment was not entered .... Accordingly, the Court denies the current application without prejudice because it is premature.”). 4 Accordingly, 5 IT IS ORDERED that: 6 (1) Defendants’ motions to dismiss (Docs. 9, 22) are granted. 7 (2) | Schwanz is dismissed as a party to this action. 8 (3) Defendants’ requests for attorneys’ fees and costs are denied without prejudice. 10 Dated this 20th day of November, 2020. 11 12 Lom ee” 13 f CC —— Dominic W. Lanza 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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