Hoover v. Swift Transportation Company

• Court: District Court, D. Arizona
• Decided: November 19, 2019
• Docket: 2:18-cv-03314
• Status: Unknown

Opinion

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

9 Isaiah Hoover, No. CV-18-03314-PHX-JAT

10 Plaintiff, ORDER

11 v.

12 Swift Transportation Company,

13 Defendant. 14 15 Pending before the Court is Defendant Swift Transportation Company’s 16 (“Defendant”) Motion to Dismiss Plaintiff Isaiah Hoover’s (“Plaintiff”) First Amended 17 Complaint, (Doc. 13). (Doc. 23). Plaintiff has responded, (Docs. 27 & 28), and Defendant 18 has replied, (Doc. 33). Plaintiff has also filed a Motion to Amend the First Amended 19 Complaint, (Doc. 25), as well as a supporting exhibit, (Doc. 29), and a memorandum, (Doc. 20 31). Defendant has responded to Plaintiff’s Motion to Amend, (Doc. 34), and Plaintiff has 21 not replied. The Court now rules on the motions. 22 I. BACKGROUND 23 The Court first briefly recounts Plaintiff’s allegations. Broadly speaking, Plaintiff 24 organizes his allegations around Defendant’s failure to investigate or respond to the actions 25 of three employees: Ken, Timmy Dale, and Gustavo. (See Doc. 13). 26 Plaintiff, who is African-American, alleges that Ken, a manager with an unknown 27 last name, verbally abused him during training by repeatedly calling him “boy”—a word 28 historically used as a racial epithet (Id. at 2). Plaintiff also alleges that after he reported 1 Ken’s conduct to the human resources department, Plaintiff’s next trainer told Plaintiff that 2 he did not want to train Plaintiff anymore and requested Plaintiff’s transfer to another truck. 3 (Id. at 3). 4 Later, Timmy Dale was assigned to be Plaintiff’s trainer. (Id. at 4). Plaintiff alleges 5 that Dale: asked Plaintiff to drive beyond his “hours of services;” became verbally abusive 6 in response to Plaintiff opening a can of tuna before spraying a bottle of air freshener in his 7 face; and threatened retaliation, using racial slurs, when Plaintiff decided to report him to 8 human resources. (Id. at 4-5). Plaintiff also alleges that the morning after reporting Dale’s 9 behavior to a supervisor, the supervisor issued a disciplinary warning to Plaintiff and had 10 him transferred to another truck. (Id. at 5-6). 11 Most of Plaintiff’s allegations, however, concern Gustavo. (Id. at 6-12). Among 12 other things, Plaintiff alleges that he repeatedly refused Gustavo’s unwelcome sexual 13 advances. (Id. at 7-9). He also alleges that Gustavo complained that “[t]he worst part of his 14 [j]ob is training Black Ethiopian men, [b]ecause of their [o]dor, accents, and they can’t 15 [d]rive.” (Id. at 9). According to Plaintiff, Gustavo kept an ornament depicting “[t]hree 16 black [m]onkeys . . . swinging from . . . nooses across his dash board [sic].” (Id.). Plaintiff 17 describes an episode where Gustavo became physical with him by forcefully taking a 18 communication device from his hand after he had decided to report Gustavo’s behavior. 19 (Id. at 10). He also claims that Gustavo intentionally gave him lower scores on driving 20 exams, and even damaged his own truck, in his effort to hinder Plaintiff’s workplace 21 success. (Id. at 10-11). Plaintiff reported this to the human resources department, but he 22 alleges they took no action and he was ultimately fired. (Id. at 11-12). 23 Based on these allegations, Plaintiff contends that Defendant discriminated against 24 him on the basis of race and sex in violation of Title VII of the Civil Rights Act of 1964. 25 Plaintiff also appears to allege a claim for intentional infliction of emotional distress based 26 on the same underlying conduct. Defendant now moves to dismiss the complaint under 27 Federal Rule of Civil Procedure (“Rule”) 12(b)(6), arguing that Plaintiff’s Title VII claims 28 are time-barred and that his intentional infliction of emotional distress claim is not 1 sufficiently pleaded. 2 II. DISCUSSION 3 A. Legal Standard 4 When a claim either lacks a cognizable legal theory or alleges insufficient facts 5 under a cognizable legal theory, the Court must grant a motion to dismiss for failure to 6 state a claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). Only 7 a complaint that satisfies Rule 8(a)(2)’s requirement of “a short and plain statement of the 8 claim showing that the pleader is entitled to relief,” will survive a Rule 12(b)(6) motion. 9 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rule 8 requires a complaint to plead 10 sufficient facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 11 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A complaint shows facial 12 plausibility by pleading factual content that allows the Court to draw reasonable inferences 13 as to the defendant’s liability. Id. (quoting Twombly, 550 U.S. at 556). But when “a 14 complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops 15 short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. (quoting 16 Twombly, 550 U.S. at 557). In ruling on the motion, the Court must take as true all well- 17 pleaded factual allegations but need not accept conclusory statements. Id. 18 The Court may also grant a motion to dismiss when it is clear from the face of the 19 complaint that a plaintiff’s claims fall outside the applicable statute of limitations. Jablon 20 v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). “A court should not dismiss a 21 complaint unless [the] plaintiff cannot plausibly prove a set of facts demonstrating the 22 timeliness of the claim.” Ranch Realty, Inc. v. DC Ranch Realty, LLC, 614 F. Supp. 2d 23 983, 987 (D. Ariz. 2007). Dismissal is warranted “only if the assertions of the complaint, 24 read with the required liberality, would not permit the plaintiff to prove that the statute was 25 tolled.” Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000) (quoting 26 TwoRivers v. Lewis, 174 F. 3d 987, 991 (9th Cir. 1999)). “Because the applicability of the 27 equitable tolling doctrine often depends on matters outside the pleadings, it ‘is not 28 generally amenable to resolution by a Rule 12(b)(6) motion.’” Supermail Cargo, Inc. v. 1 United States, 68 F.3d 1204, 1206 (9th Cir. 1995) (quoting Cervantes v. City of San Diego, 2 5 F.3d 1273, 1276 (9th Cir. 1993)). 3 B. Title VII 4 Defendant argues that Plaintiff’s Title VII claim must be dismissed because he filed 5 his complaint more than 90 days after the EEOC notified Plaintiff of his right to sue, 6 meaning his claim is barred by the statute of limitations. (Doc. 23 at 5). Plaintiff appears 7 to assert that his late filing was due to the EEOC’s administrative error, tolling the statute. 8 (Doc. 28 at 7-8). 9 After dismissing a claim, the EEOC must notify a claimant to inform him that he 10 has 90 days to bring a civil action. Scholar v. Pac. Bell, 963 F.2d 264, 266 (9th Cir. 1992) 11 (citing 42 U.S.C. § 2000e-5(f)(1)). “This ninety-day period is a statute of limitations. 12 Therefore, if a claimant fails to file the civil action within the ninety-day period, the action 13 is barred.” Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 383 (9th Cir. 1997) (citation 14 omitted). The doctrine of equitable tolling may afford relief to an untimely filer, but “only 15 sparingly” and not if “the claimant failed to exercise due diligence in preserving his legal 16 rights.” Irwin v. Dep’t of Vet. Affairs, 498 U.S. 89, 96 (1990) (citing Baldwin Cty. Welcome 17 Ctr. v. Brown, 466 U.S. 147, 151 (1984) (per curiam)). 18 Plaintiff alleged he received his right-to-sue letter on July 13, 2018, the same date 19 the EEOC mailed it to him. (Doc. 1 at 5, 53). Thus, Plaintiff had until October 11, 2018, to 20 bring his civil action. Plaintiff filed his complaint on October 15, 2018. (Doc. 1 at 1). 21 Because Plaintiff brought his civil action 94 days after receiving the right-to-sue letter, his 22 claim is barred by the statute of limitations unless his case is the rare one in which equitable 23 tolling applies. 24 Although nothing in the complaint invokes the doctrine of equitable tolling, Plaintiff 25 claims it applies here because of the EEOC’s negligence, pointing to a letter in which the 26 EEOC acknowledged that, “[d]ue to an administrative error, the Charge of Discrimination 27 was not formalized and served on [Defendant] until June 19, 2018.” (Doc. 29 at 4). It is not 28 clear how, if at all, the EEOC’s failure to serve the charge of discrimination on Defendant 1 until June 19, 2018, could in any way affect Plaintiff’s ability to act on a notice sent to him 2 nearly one month later. Therefore, assuming the truth of Plaintiff’s own allegations, the 3 statute of limitations has run. 4 The Court remains mindful, however, that a plaintiff is generally “not required to 5 plead around anticipated affirmative defenses, including the statute of limitations,” Oliver 6 v. In-N-Out Burgers, 286 F.R.D. 475, 478 (S.D. Cal. 2012) (citing cases), and that a Rule 7 12(b)(6) order is typically not an ideal vehicle to address whether equitable tolling applies. 8 Therefore, because Plaintiff could possibly plead the elements of equitable tolling, the 9 Court shall grant Plaintiff leave to amend. Lacey v. Maricopa County, 693 F.3d 896, 926 10 (9th Cir. 2012) (en banc) (“[A] district court should grant leave to amend . . . unless it 11 determines that the pleading could not possibly be cured by the allegation of other facts.” 12 (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). In amending, Plaintiff 13 must affirmatively plead facts that, if proven, would entitle him to equitable tolling.1 14 C. Intentional Infliction of Emotional Distress 15 Defendant next argues that Plaintiff has alleged insufficient facts to state a plausible 16 claim of intentional infliction of emotional distress. (Doc. 23 at 6). Specifically, Defendant 17 argues that Plaintiff has not alleged that Defendant engaged in any outrageous conduct. 18 (Docs. 23 at 7-8; 33 at 3-4). Plaintiff appears to understand Defendant to argue that he was 19 required to specifically use the words “extreme and outrageous,” asking the Court to permit 20 him to amend his complaint so that he can add that allegation. (Doc. 28 at 9-10).2 21 1 Because the Court concludes that Plaintiff’s Title VII claim is barred by the statute of 22 limitations absent proof that equitable tolling applies, the Court need not address Defendant’s alternative argument that Plaintiff’s Title VII claim must be dismissed because 23 he failed to exhaust his administrative remedies. (Doc. 23 at 4-5). 2 Defendant’s argument that Plaintiff was required to allege extreme and outrageous 24 conduct in order to state a claim for intentional infliction of emotional distress is premised entirely on Arizona law. (Docs. 23 at 7-8; 33 at 3-4). This Court must apply Arizona’s 25 choice-of-law rules to determine what law governs this tort claim. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496–97 (1941). The complaint, however, does not specify 26 where the conduct complained of occurred beyond mentioning that one of the incidents took place while driving from Georgia to California. (Doc. 13 at 4). Thus, although 27 Arizona’s substantive tort law may not apply under the Second Restatement’s interests analysis, see Pounders v. Enserch E & C, Inc., 306 P.3d 9, 11 ¶ 9 (Ariz. 2013) (explaining 28 that Arizona follows the Second Restatement’s choice-of-law approach), the Court has assumed it does for purposes of this order only. 1 Arizona follows the Restatement (Second) of Torts § 46 and allows recovery “where 2 one intentionally causes another severe emotional distress . . . even in the absence of a 3 resulting physical harm.” Savage v. Boies, 272 P.2d 349, 358 (Ariz. 1954). Stating a claim 4 for intentional infliction of emotional distress requires alleging that: (1) the defendant’s 5 conduct was “extreme and outrageous,” (2) the defendant intended to, or recklessly 6 disregarded the near certainty that he would, cause emotional distress, and (3) resulting 7 severe emotional distress. Watts v. Golden Age Nursing Home, 619 P.2d 1032, 1035 (Ariz. 8 1980). Whether a defendant’s conduct is reasonably regarded as extreme and outrageous 9 is a preliminary question for the court. Id. This is a “high standard.” Craig v. M & O 10 Agencies, Inc., 496 F.3d 1047, 1059 (9th Cir. 2007); Watts, 619 P.2d at 1035 (“[T]he 11 conduct necessary to sustain an intentional infliction claim falls at the very extreme edge 12 of the spectrum of possible conduct.”). A plaintiff adequately pleads this first element so 13 long as “reasonable minds could differ about whether the conduct is sufficiently 14 outrageous” to clear this high bar. Johnson v. McDonald, 3 P.3d 1075, 1080 ¶ 23 (Ariz. Ct. 15 App. 1999). Although this normally calls for a case-by-case inquiry, Lucchesi v. Frederic 16 N. Stimmell, M.D., Ltd., 716 P.2d 1013, 1016 (Ariz. 1986), “[i]t is extremely rare to find 17 conduct in the employment context that will rise to the level of outrageousness necessary 18 to provide a basis for recovery for the tort of intentional infliction of emotional distress,” 19 Mintz v. Bell Atl. Sys. Leasing Int’l, Inc., 905 P.2d 559, 563 (Ariz. Ct. App. 1995) (quoting 20 Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988)). An employer may, 21 however, be independently liable to a former employee for intentional infliction of 22 emotional distress when it was on notice of ongoing sexual harassment but failed to 23 respond to or remedy the situation. See Craig, 496 F.3d at 1059 (first citing Ford v. Revlon, 24 Inc., 734 P.2d 580, 585–86 (Ariz. 1987), and then citing Smith v. Am. Express Travel 25 Related Servs. Co., 876 P.2d 1166, 1173–74 (Ariz. Ct. App. 1994)); Sternberger v. 26 Gilleland, No. CV-13-02370-PHX-JAT, 2014 WL 3809064, at *8 (D. Ariz. Aug. 1, 2014). 27 Here, the Court finds that reasonable minds could differ as to whether Defendant’s 28 actions were sufficiently extreme and outrageous and thus will not dismiss Plaintiff’s 1 intentional infliction of emotional distress claim on that basis. Indeed, as indicated above, 2 Plaintiff’s complaint makes numerous allegations of harassment against Gustavo, 3 including that he was overly physical with Plaintiff, made unwanted sexual advances 4 toward Plaintiff, engaged in racist comments, and displayed an ornament depicting “[t]hree 5 black [m]onkeys . . . swinging from . . . nooses across his dash board [sic].” (Doc. 13 at 8- 6 12). Plaintiff also alleged that Defendant failed to even investigate this situation after he 7 reported Gustavo’s actions to human resources let alone take any responsive remedial 8 measures. (Doc. 13 at 11). Crediting Plaintiff’s allegations as true, this alone would be 9 sufficient to state a claim for intentional infliction of emotional distress against Defendant. 10 Plaintiff’s additional allegations that he reported the racist comments of both Ken and 11 Timmy Dale to human resources, and that Defendant took no action on these reports as 12 well, buttress the factual plausibility of his claim even further. Accordingly, Plaintiff has 13 adequately alleged that Defendant engaged in extreme and outrageous conduct. 14 D. Compliance with Federal Rules of Civil Procedure 15 Defendant finally argues that the Court should dismiss this action entirely to 16 sanction Plaintiff under Rule 41(b) for failing to comply with the Federal Rules of Civil 17 Procedure. (Doc. 23 at 9). 18 Federal courts have inherent authority to use sanctions, including dismissal, to 19 control their dockets. Link v. Wabash Ry., 370 U.S. 626, 629 (1962). Rule 41(b) “expressly 20 recognize[s]” this long-held authority, id. at 630, and provides the Court with discretion to 21 dismiss “an action” for, inter alia, failing to comply with the applicable procedural rules, 22 Fed. R. Civ. P. 41(b). The Court should not impose the “harsh penalty” of dismissal, 23 however, absent “extreme circumstances.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th 24 Cir. 1992); see also Valley Eng’rs, Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 25 1998) (explaining that that Ninth Circuit’s five-factor test to determine whether dismissal 26 is an appropriate sanction is simply “a way for a district judge to think about what to do” 27 when imposing a sanction). Where, as here, a plaintiff is pro se, “in evaluating his 28 compliance with the technical rules of civil procedure, [the Court] treat[s] him with great 1 leniency.” Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986). 2 Defendant first seeks dismissal based on Plaintiff’s purported failure to comply with 3 Rule 8(a) and Rule 8(d), apparently because his allegations are neither “short and plain” 4 nor “simple, concise, and direct.” (Doc. 23 at 9). The Court may dismiss on these grounds, 5 but dismissal “is usually confined to instances in which the complaint is so ‘verbose, 6 confused and redundant that its true substance, if any, is well disguised.’” Gillibeau v. City 7 of Richmond, 417 F.2d 426, 431 (9th Cir. 1969) (quoting Corcoran v. Yorty, 347 F.2d 222, 8 223 (9th Cir. 1965)). As indicated above, however, Plaintiff’s allegations—although 9 slightly convoluted—are at least adequately clear, organized, and intelligible. Plaintiff’s 10 complaint sufficiently details the grounds on which his claims rest. Specifically, Plaintiff 11 alleged that he suffered either racial discrimination or sexual harassment at the hands of 12 three of Defendant’s employees, that his reports to Defendant’s human resources 13 department about these incidents went ignored, and that he was ultimately fired. Moreover, 14 Plaintiff’s allegations are not scattered throughout the complaint such that the Court must 15 piece them together itself; rather, the allegations are logically structured around the 16 behavior of the three allegedly harassing employees. See Donahoe v. Arpaio, 869 F. Supp. 17 2d 1020, 1076 (D. Ariz. 2012). Thus, the Court will not exercise its discretion to dismiss 18 Plaintiff’s case based on his purported failure to adhere to the letter of Rule 8’s technical 19 requirements. 20 Defendant also asserts that Plaintiff’s complaint violates Rule 10(b), which states 21 that, “[i]f doing so would promote clarity, each claim founded on a separate transaction or 22 occurrence . . . must be stated in a separate count or defense.” Fed. R. Civ. P. 10(b); (Doc. 23 23 at 9-10). Although Plaintiff did not specifically make his allegations under separate 24 “counts,” he marshaled them under three separate headings labeled “issues.” The 25 allegations under each issue are discrete, each one addresses the alleged harassment carried 26 out by one of Defendant’s employees. Thus, it is not clear what, if anything, would inure 27 to Defendant’s benefit simply by having Plaintiff replace the word “issue” with the word 28 “count.” Indeed, if Rule 10(b)’s goal is to bring clarity to the pretrial process, see Bautista 1 v. Los Angeles County, 216 F.3d 837, 840–41 (9th Cir. 2000), then Plaintiff’s allegations 2 (bearing in mind that he is self-represented) comport fully with that goal. In other words, 3 Plaintiff has identified separately the occurrences on which he bases his Title VII claim 4 and his intentional infliction of emotional distress claim: one involving Ken, one involving 5 Timmy Dale, and one involving Gustavo. Therefore, the Court does not find any technical 6 lack of compliance with Rule 10(b) to warrant dismissal of Plaintiff’s action. 7 Accordingly, the Court will not dismiss the case for Plaintiff’s purported failure to 8 comply with either Rule 8 or Rule 10.3 9 III. CONCLUSION 10 Based on the foregoing, 11 IT IS ORDERED that Defendant Swift Transportation Company’s Motion to 12 Dismiss (Doc. 23) is GRANTED IN PART AND DENIED IN PART as explained above. 13 IT IS FURTHER ORDERED granting Plaintiff leave to amend his complaint such 14 that Plaintiff may, if he chooses, file an amended complaint repleading his Title VII claims 15 within 14 days of the date of this order. In accordance with District of Arizona Local Rule 16 Civil 15.1(a), an amended complaint must “indicate in what respect it differs from the 17 pleading which it amends, by bracketing or striking through the text to be deleted and 18 underlining the text to be added.” LRCiv. 15.1(a). 19 IT IS FURTHER ORDERED that Defendant must answer or otherwise respond 20 to the complaint (if no amended complaint is filed) or the amended complaint (if an 21 amended complaint is filed) within 28 days of the date of this order. 22 IT IS FURTHER ORDERED that Plaintiff’s Motion to Amend (Doc. 25) is 23 DENIED as moot because the Court has already granted Plaintiff leave to amend his 24 3 Defendant argues that “Plaintiff has named four individual defendants, and because of 25 this, it is impossible to tell which of Plaintiff’s causes of action apply to which Defendants.” (Doc. 23 at 9). Although Plaintiff identified several individuals as defendants in his civil 26 cover sheet, (Doc. 1 at 2), he did not identify any party but Swift Transportation Company in the caption of his amended complaint, (Doc. 13 at 1). An amended pleading supersedes 27 a prior one in all respects. BBK Tobacco & Foods LLP v. Skunk Inc., No. CV-18-02332- PHX-JAT, 2019 WL 1921594, at *7 (D. Ariz. April 30, 2019). Because Plaintiff did not 28 re-name these defendants in his amended complaint, those defendants were terminated as of February 14, 2019, and his claim is against Swift Transportation Company only. 1 || complaint. Moreover, Plaintiffs Motion to Amend is also procedurally improper for failure to attach a copy of the proposed amended pleading to the motion in compliance with Local || Rule 15.1(a). 4 Dated this 19th day of November, 2019. 5 6 '

James A, CO 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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