1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Norma O. McCauley, No. CV-18-04116-PHX-DWL
10 Plaintiff, ORDER
11 v.
12 Fry's Food & Drug Stores, Inc., d/b/a Fry's Marketplace, et al., 13 Defendants. 14 15 Pending before the Court is Defendant Fry’s Food & Drug Stores (“Fry’s”) motion 16 to dismiss pro se Plaintiff Norma McCauley’s second amended complaint (“SAC”), as well 17 as McCauley’s motion for leave to file a third amended complaint (“TAC”). For the 18 following reasons, the motion to dismiss will be granted, the motion for leave to amend 19 will be denied, and this action will be terminated. 20 BACKGROUND 21 A. Procedural Background 22 On November 11, 2018, McCauley initiated this action by filing a complaint (Doc. 23 1) and a motion for leave to proceed in forma pauperis (“IFP”) (Doc. 2). 24 On January 10, 2019, after screening the complaint pursuant to 28 U.S.C. § 1915, 25 the Court issued an order granting the IFP request but dismissing the complaint, with leave 26 to amend, because it was illegible and failed to adequately plead the existence of subject 27 matter jurisdiction. (Doc. 7.) 28 On January 18, 2019, McCauley filed a first amended complaint. (Doc. 8.) 1 On January 23, 2019, McCauley filed the SAC. (Doc. 9.) 2 On January 24, 2019, the Court issued an order stating that, although McCauley’s 3 filing of the SAC was procedurally improper, she would be given retroactive authorization 4 to file it. (Doc. 10.) This order further instructed McCauley “to follow the Federal and 5 Local Rules in the future, including seeking leave from the Court (or written consent from 6 all Defendants) before filing any additional amended complaints.” (Id. at 2.) 7 On May 22, 2019, Fry’s filed a motion to dismiss the SAC. (Doc. 26.)1 8 On September 5, 2019, McCauley—who had requested and received several 9 extensions of time (Docs. 27-30)—filed a response to the motion to dismiss. (Doc. 31.) 10 On September 27, 2019, Fry’s filed a reply in support of its motion. (Doc. 34.) 11 Four days later—on October 1, 2019—McCauley filed a motion for leave to file a 12 TAC. (Doc. 35.) Fry’s then filed a response and McCauley filed a reply (Docs. 36, 37). 13 B. Underlying Facts 14 The facts alleged in the SAC (Doc. 9) and in McCauley’s charge of discrimination 15 to the Equal Employment Opportunity Commission (“EEOC”) (Doc. 19-1)2 are not a 16 model of clarity. Below, the Court has attempted to summarize those facts, which are 17 assumed to be true for purposes of the motion to dismiss. 18 In 2005, McCauley began working at Fry’s as a clerk in the Home Department. 19 (Doc. 19-1 at 2.) McCauley is “female,” “African American,” and was born in 1959. (Doc. 20 9 at 4-5.) 21 In or around 2012, McCauley’s immediate supervisor, “Art,” who is “Caucasian, 22 1 Fry’s initially filed a motion to dismiss on April 23, 2019 (Doc. 19), but the Court 23 ordered Fry’s to re-file it using a larger font size so that McCauley, who has vision problems, could read it. (Doc. 25). 24 2 The SAC explicitly refers to the EEOC charge and cross-references it as providing 25 the factual foundation for McCauley’s claims. (Doc. 9 at 4 [“It is my best recollection that the alleged discriminatory acts occurred . . . [a]s alleged in EEOC Charge 540-2016- 26 022389”].) Thus, although McCauley did not provide the actual EEOC charge as an exhibit to the SAC—it was provided as an exhibit to the motion to dismiss filed by Fry’s (Doc. 27 19-1)—the Court may consider it when ruling on the motion to dismiss. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (“A court may . . . consider . . . documents 28 incorporated by reference in the complaint . . . without converting the motion to dismiss into a motion for summary judgment.”). 1 male,” became aware that McCauley was over 50 years old. (Doc. 9 at 5; Doc. 19-1 at 2.) 2 Afterward, Art mistreated McCauley in a variety of ways: 3 ▪ First, Art refused to train McCauley on the store’s new computer system, even 4 though she was qualified to work on this system and another supervisor instructed Art to 5 provide training to her. (Doc. 9 at 5.) Art also refused to train another one of McCauley’s 6 co-workers who was over 50 years old. (Id.) The only co-workers who received computer 7 training from Art were under 50 years old. (Id.) 8 ▪ Second, Art asked McCauley to transfer to the Deli Department. (Doc. 19-1 at 9 2.) When McCauley refused the transfer request (and other subsequent requests) because 10 a transfer would result in a loss of seniority benefits, Art reduced McCauley’s hours “from 11 40 hours to 20 hours.” (Doc. 9 at 5; Doc. 19-1 at 2.) The resulting loss of income caused 12 McCauley to “lose [her] apartment unit and medical insurance.” (Doc. 9 at 5.) 13 ▪ Third, Art also changed McCauley’s work schedule “11 times” following her 14 refusal to accept the transfer, such that she “had to arrive at work and wait six (6) hours 15 prior to [her] start time, even though [she] was only scheduled to work four (4) hours.” 16 (Doc. 9 at 5; Doc. 19-1 at 2.) “[O]ther male younger Caucasian clerks, with significantly 17 less seniority . . . were given preferential treatment in that they were allowed to choose 18 their work schedule, given more hours and overtime.” (Doc. 19-1 at 2.) The change in 19 McCauley’s work schedule made it impossible for her to take public transportation, which 20 required her to walk, which in turn “aggravated [her] medical condition.” (Id.) The change 21 in work schedule also forced McCauley to do her job without proper sleep. (Doc. 9 at 5.) 22 ▪ Fourth, one of Art’s friends falsely accused McCauley of fighting. (Doc. 9 at 5.) 23 When the union investigated this claim, “no fighting [was] found.” (Id.) 24 ▪ Fifth, when McCauley asked Art to provide her with training on “company 25 procedures,” because such training “would have enhanced [her] career with Fry’s,” Art 26 refused her request and instead “gave a younger, lighter-skinned bi-racial (Black/Hispanic) 27 male clerk, the same opportunities and benefits that [McCauley] was denied.” (Doc. 19-1 28 1 at 3.)3 2 Beginning in 2013, and “on a continuous basis” afterward, McCauley filed charges 3 of discrimination against Fry’s with the Arizona Attorney General’s Office, Civil Rights 4 Division. (Doc. 19-1 at 3.) 5 In February 2015, McCauley “went on a medical leave of absence due to my 6 medical condition.” (Doc. 19-1 at 3.) It appears, although it’s not clear, that the medical 7 leave related to McCauley’s loss of her toe and partial loss of her foot. (Doc. 9 at 5.) 8 Additionally, at some point after February 2016, McCauley began to suffer from “partial 9 blindness” due to an allergic reaction to blood thinners. (Id. at 4-5.) 10 In February 2016, Fry’s discharged McCauley. Although the SAC does not allege 11 why Fry’s made the termination decision—it offers only the temporal observation that 12 “Fry’s fired me after losing my toe and partial foot” (Doc. 9 at 5) and focuses mostly on 13 the alleged acts of discrimination that preceded the firing—McCauley asserted in her 14 EEOC charge that Fry’s “discharged me because I was on a medical leave of absence for 15 one (1) year.” (Doc. 19-1 at 3.) 16 On July 20, 2016, McCauley filed a charge of discrimination with the EEOC. (Doc. 17 19-1.) 18 On September 17, 2018, the EEOC opted not to pursue charges against Fry’s and 19 provided McCauley with a right-to-sue letter. (Doc. 1 at 6.) 20 DISCUSSION 21 I. Motion to Dismiss 22 Fry’s moves to dismiss the complaint because (1) all claims, except the apparent 23 wrongful discharge claim under the Americans with Disabilities Act (“ADA”), are time- 24 barred because McCauley failed to file an EEOC charge within 300 days of the challenged 25 conduct, and (2) the ADA claim fails under Rule 12(b)(6). (Doc. 19.) 26 3 The SAC also alleges that (1) a different supervisor named “Josh” “harassed” 27 McCauley at some unspecified point in time by filing a complaint against her and not allowing her to leave the store until she signed it, and (2) an unspecified supervisor 28 “followed [McCauley] as [she] worked with a camera phone and took pictures of [her].” (Doc. 9 at 5.) 1 A. Legal Standard 2 “[T]o survive a motion to dismiss, a party must allege ‘sufficient factual matter, 3 accepted as true, to state a claim to relief that is plausible on its face.’” In re Fitness 4 Holdings Int’l, Inc., 714 F.3d 1141, 1144 (9th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 5 U.S. 662, 678 (2009)). “A claim has facial plausibility when the plaintiff pleads factual 6 content that allows the court to draw the reasonable inference that the defendant is liable 7 for the misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at 678). “[A]ll well-pleaded 8 allegations of material fact in the complaint are accepted as true and are construed in the 9 light most favorable to the non-moving party.” Id. at 1144-45 (citation omitted). However, 10 the court need not accept legal conclusions couched as factual allegations. Iqbal, 556 U.S. 11 at 679-80. The court also may dismiss due to “a lack of a cognizable legal theory.” Mollett 12 v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015) (citation omitted). 13 Although the Iqbal pleading standard applies to pro se complaints, they “must be 14 held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 15 627 F.3d 338, 342 (9th Cir. 2010) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)). 16 Courts “have an obligation where the petitioner is pro se, particularly in civil rights cases, 17 to construe the pleadings liberally and to afford the petitioner the benefit of any doubt.” 18 Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985). But while entitled to “great 19 leeway,” a pro se litigant’s pleadings “nonetheless must meet some minimum threshold in 20 providing a defendant with notice of what it is that it allegedly did wrong.” Brazil v. U.S. 21 Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995). 22 B. Time-Barred Claims 23 The SAC asserts claims for race, sex, age, and disability discrimination. (Doc. 9 at 24 4.) Fry’s argues that all of these claims, except for any claim arising from McCauley’s 25 termination, are time-barred. (Doc. 19 at 4-6.) 26 “Title VII requires that a plaintiff timely file charges of discrimination with the 27 EEOC and receive a right to sue letter from the EEOC prior to bringing a Title VII claim 28 in federal court.” Taxey v. Maricopa Cty., 237 F. Supp. 2d 1109, 1113 (D. Ariz. 2002). 1 Such a charge is timely if made “by or on behalf of the person aggrieved within three 2 hundred days after the alleged unlawful employment practice occurred.” 42 U.S.C. § 3 2000e-5(e)(1). 4 Here, McCauley filed her EEOC charge on July 20, 2016. (Doc. 19-1 at 3.) Thus, 5 for an unlawful employment practice to be actionable in the present lawsuit, it must have 6 occurred on or after September 24, 2015. 7 “A discrete discriminatory act ‘occurred’ on the day it ‘happened.’” Nat’l R.R. 8 Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002). Examples of “[d]iscrete 9 discriminatory acts” include “termination, failure to promote, denial of transfer, or refusal 10 to hire.” Id. at 114. “[D]iscrete discriminatory acts are not actionable if time barred, even 11 when they are related to acts alleged in timely filed charges.” Id. at 113. Furthermore, 12 “discrete acts that fall within the statutory time period do not make timely acts that fall 13 outside the time period.” Id. at 112. 14 Here, McCauley’s EEOC charge alleges she was discharged in February 2016. 15 (Doc. 19-1 at 3.) She filed the EEOC charge on July 20, 2016, so any discrimination claim 16 arising from her discharge was pursued within the statutory time period and remains 17 actionable. However, McCauley also stated in her EEOC charge that “[b]eginning 18 February of 2015, I went on a medical leave of absence due to my medical condition.” 19 (Id.) The next event alleged in the charge is that “[o]n February of 2016, Respondent 20 discharged me because I was on a medical leave of absence for one (1) year.” (Id.) 21 Thus, even drawing all reasonable inferences in favor of McCauley, none of the 22 discriminatory conduct discussed in the SAC (other than the termination) could have 23 occurred within the 300-day window. Although the timeframe of the SAC is not explicit, 24 it’s clear that McCauley was physically present at work when the alleged acts of 25 discrimination (other than the discharge) took place. (Doc. 9 at 5 [alleging a refusal to train 26 McCauley on computers at work, changed working hours, a reduced number of working 27 hours, being forced to stay at work late to sign a complaint, and a request to move to a 28 different department].) Yet the EEOC charge makes clear that McCauley stopped being 1 physically present at Fry’s in February 2015, when she began her one-year term of medical 2 leave. Thus, all of the alleged acts of discrimination (other than the termination) took place 3 more than 300 days before McCauley filed her EEOC charge in July 2016, meaning that 4 any claims pertaining to those alleged acts of discrimination are time-barred. 5 C. Failure to State a Claim 6 Fry’s argues that McCauley has failed to state a claim upon which relief can be 7 granted regarding her termination. (Doc. 19 at 6-8.) Fry’s contends that the “sole 8 allegation in the SAC regarding the termination” is that Fry’s fired McCauley “after losing 9 her toe and partial foot.” (Doc. 19 at 6, emphasis in original). 10 The Court agrees that McCauley’s claim related to her termination appears to be a 11 claim of disability discrimination under the ADA. Although the SAC broadly alleges that 12 McCauley was discriminated against due to her age, sex, race, disability, and because she 13 filed charges with the EEOC (Doc. 9 at 4-5), most of those claims appear to relate to the 14 other time-barred conduct. Moreover, McCauley asserted in the EEOC charge that she was 15 fired “because” she was on medical leave for one year, which suggests the termination 16 decision may have been disability-related. (Doc. 19-1 at 3.) Finally, McCauley also 17 seemed to concede in the EEOC charge that Fry’s didn’t terminate her based on her race 18 or gender, as she acknowledged that Fry’s followed a pattern of allowing other female and 19 African-American employees to remain on medical leave for more than a year. (Id. [“I am 20 aware of male and female Clerks (Black and Caucasian) who have been out of work for 21 more than 1 year, however, they were not discharged like I was.”].) 22 Accordingly, the Court will assess the sufficiency of the SAC under the ADA, which 23 prohibits “discriminat[ion] against a qualified individual on the basis of disability in regard 24 to . . . discharge of employees.” 42 U.S.C. § 12112(a). To establish a prima facie case of 25 unlawful discharge under the ADA, an employee must show that “(1) she is a disabled 26 person within the meaning of the ADA; (2) she is a qualified individual, meaning she can 27 perform the essential functions of her job; and (3) [her employer] terminated her because 28 of her disability.” Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999). 1 Here, the SAC does not establish a prima facie case. As to the first element, a 2 disability is defined as a “physical . . . impairment that substantially limits one or more 3 major life activities,” and “standing” and “walking” qualify as major life activities. 42 4 U.S.C. § 12102(1)-(2). The SAC, however, provides no detail whatsoever about how (if 5 at all) McCauley’s loss of her toe and partial loss of her foot have limited her major life 6 activities. The partial loss of a foot does not necessarily qualify as a disability under the 7 ADA. Feltman v. BNSF Railway Co., Inc., 2018 WL 529952, *8 (N.D. Ala. 2018) 8 (“Feltman has not demonstrated that his partially amputated right foot is an actual 9 ‘disability’ under the ADA, because he has not shown that his foot condition limits any of 10 his major life activities.”). Moreover, although the SAC also alleges that McCauley now 11 suffers from “near blindness” (Doc. 9 at 4), it clarifies that McCauley didn’t begin to suffer 12 from this condition until “[a]fter the firing of Fry’s,” when she had an allergic reaction to 13 blood thinners. (Id. at 5, emphasis added.) Thus, it cannot provide the foundation for her 14 ADA claim. 15 Second, the SAC also fails to specify the essential functions of McCauley’s job or 16 allege that she retained the ability to perform those essential functions following the loss 17 of her toe and part of her foot. If anything, the materials submitted by McCauley suggest 18 she wasn’t able to perform the essential functions of her job after sustaining these losses— 19 after all, the EEOC charge states that McCauley was forced to go on medical leave, which 20 lasted for a year, beginning in February 2015. 21 Third, and most important, the SAC fails to allege a causal relationship between 22 McCauley’s alleged disability and her discharge. The allegation that “Fry’s fired [her] 23 after losing her toe and partial foot” is a statement of temporal relationship, not of 24 causation, and McCauley seemed to allege in her EEOC charge that she was fired for taking 25 too much leave, not because of disability-related discrimination. (Doc. 19-1 at 3 [“[Fry’s] 26 discharged me because I was on a medical leave of absence for one (1) year.”].) 27 For these reasons, the Court agrees with Fry’s that the SAC should be dismissed in 28 its entirety. 1 II. Motion to Amend 2 McCauley has filed a motion for leave to file a TAC, arguing that in her previous 3 two amendments, “nothing was added to the Complaint[,] know [sic] words or text was 4 added to the Complaint [sic].” (Doc. 35 at 1-2.) In response, Fry’s argues that the request 5 for leave to amend should be denied because (1) it fails to comply with Local Rule 15.1 6 and (2) amendment would be futile to the extent McCauley wishes to use the TAC to 7 incorporate the facts set forth in her response to the motion to dismiss. (Doc. 36 at 2-3.) 8 The Court agrees with Fry’s. First, the motion for leave to amend is deficient under 9 Local Rule 15.1(a). That rule provides that “[a] party who moves for leave to amend a 10 pleading must attach a copy of the proposed amended pleading as an exhibit to the motion, 11 which must indicate in what respect it differs from the pleading which it amends, by 12 bracketing or striking through the text to be deleted and underlining the text to be added.” 13 McCauley did not comply with those requirements here—her one-page motion doesn’t 14 specify, with any precision, what changes she would like to make in the TAC and doesn’t 15 include a redlined version of the TAC showing how it differs from the SAC. 16 Noncompliance with LRCiv 15.1 is a permissible ground for denying a motion for 17 leave to amend. Indeed, without the proposed new version of the complaint, it is difficult 18 to “make a determination on whether such amendment would be futile.” Weymouth v. Cty. 19 of Maricopa, 2019 WL 429894, *5 (D. Ariz. 2019). See also Aguirre v. Amchem Prod. 20 Inc., 2012 WL 760627, *2 (D. Ariz. 2012) (“[P]laintiffs have not properly sought leave to 21 amend because they have not filed a motion attaching a copy of the proposed amended 22 pleading. See LRCiv. 15.1. Absent that, we cannot evaluate whether amendment would 23 be futile.”). 24 Second, although pro se litigants such as McCauley should be granted significant 25 latitude when it comes to being afforded leave to cure pleading deficiencies,4 such leave 26 would be inappropriate here because McCauley’s response to the motion to dismiss makes 27 4 Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (“A district court should not 28 dismiss a pro se complaint without leave to amend unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.”) (citations omitted). clear that further amendment would be futile. Notably, McCauley suggests in her response 2|| that the termination decision wasn’t based on any sort of disability-related animus held by || Fry’s—instead, she contends that Fry’s terminated her for absenteeism (i.e, not coming to work after exhausting all of her leave time) and then asserts the termination decision was 5 || wrongful because Fry’s miscalculated the amount of leave to which she was entitled. (Doc. 6|| 31 at 3-4.) Whether or not this is true, it doesn’t show that, if afforded yet another || opportunity to amend her complaint, McCauley could supply new factual allegations to 8 || cure the deficiencies identified in Part I.C above. 9 Accordingly, IT IS ORDERED that: 10 (1) | The motion to dismiss the SAC (Doc. 26) is granted; 11 (2) The SAC is dismissed with prejudice; 12 (3) |The motion for leave to amend (Doc. 35) is denied; and 13 (4) The Clerk of Court shall terminate this action and enter judgment 14 accordingly. 15 Dated this 8th day of November, 2019. 16 17 fom ee
19 United States District Judge 20 21 22 23 24 25 26 27 28
-10-
1 2 Exhibit A 3 4 Pending before the Court is Defendant 5 6 Fry’s Food & Drug Stores (“Fry’s”) motion 7 8 to dismiss pro se Plaintiff Norma 9 10 McCauley’s second amended complaint 11 12 (“SAC”), as well as McCauley’s motion for 13 14 leave to file a third amended complaint 15 16 (“TAC”). For the following reasons, the 17 18 motion to dismiss will be granted, the motion 19 20 for leave to amend will be denied, and this 21 22 action will be terminated. 23 24 BACKGROUND 25 26 A. Procedural Background 27 28 1 2 On November 11, 2018, McCauley initiated 3 4 this action by filing a complaint (Doc. 1) and 5 6 a motion for leave to proceed in forma 7 8 pauperis (“IFP”) (Doc. 2). 9 10 On January 10, 2019, after screening the 11 12 complaint pursuant to 28 U.S.C. § 1915, the 13 14 Court issued an order granting the IFP 15 16 request but dismissing the complaint, with 17 18 leave to amend, because it was illegible and 19 20 failed to adequately plead the existence of 21 22 subject matter jurisdiction. (Doc. 7.) 23 24 On January 18, 2019, McCauley filed a 25 26 first amended complaint. (Doc. 8.) 27 28 1 2 On January 23, 2019, McCauley filed the 3 4 SAC. (Doc. 9.) 5 6 On January 24, 2019, the Court issued an 7 8 order stating that, although McCauley’s 9 10 filing of the SAC was procedurally improper, 11 12 she would be given retroactive authorization 13 14 to file it. (Doc. 10.) This order further 15 16 instructed McCauley “to follow the Federal 17 18 and Local Rules in the future, including 19 20 seeking leave from the Court (or written 21 22 consent from all Defendants) before filing 23 24 any additional amended complaints.” (Id. at 25 26 2.) 27 28 1 2 On May 22, 2019, Fry’s filed a motion to 3 4 dismiss the SAC. (Doc. 26.)5 5 6 On September 5, 2019, McCauley—who 7 8 had requested and received several 9 10 extensions of time (Docs. 27-30)—filed a 11 12 response to the motion to dismiss. (Doc. 31.) 13 14 On September 27, 2019, Fry’s filed a 15 16 reply in support of its motion. (Doc. 34.) 17 18
19 5 Fry’s initially filed a motion to dismiss on 20 21 April 23, 2019 (Doc. 19), but the Court 22 23 ordered Fry’s to re-file it using a larger font 24 25 size so that McCauley, who has vision 26 27 problems, could read it. (Doc. 25). 28 1 2 Four days later—on October 1, 2019— 3 4 McCauley filed a motion for leave to file a 5 6 TAC. (Doc. 35.) Fry’s then filed a response 7 8 and McCauley filed a reply (Docs. 36, 37). 9 10 B. Underlying Facts 11 12 The facts alleged in the SAC (Doc. 9) and 13 14 in McCauley’s charge of discrimination to 15 16 the Equal Employment Opportunity 17 18 Commission (“EEOC”) (Doc. 19-1)6 are not 19 20
21 22 6 The SAC explicitly refers to the EEOC 23 24 charge and cross-references it as providing 25 26 the factual foundation for McCauley’s 27 28 claims. (Doc. 9 at 4 [“It is my best 1 2
3 4 recollection that the alleged discriminatory 5 6 acts occurred . . . [a]s alleged in EEOC 7 8 Charge 540-2016-022389”].) Thus, although 9 10 McCauley did not provide the actual EEOC 11 12 charge as an exhibit to the SAC—it was 13 14 provided as an exhibit to the motion to 15 16 dismiss filed by Fry’s (Doc. 19-1)—the Court 17 18 may consider it when ruling on the motion to 19 20 dismiss. United States v. Ritchie, 342 F.3d 21 22 903, 908 (9th Cir. 2003) (“A court may . . . 23 24 consider . . . documents incorporated by 25 26 reference in the complaint . . . without 27 28 converting the motion to dismiss into a 1 2 a model of clarity. Below, the Court has 3 4 attempted to summarize those facts, which 5 6 are assumed to be true for purposes of the 7 8 motion to dismiss. 9 10 In 2005, McCauley began working at 11 12 Fry’s as a clerk in the Home Department. 13 14 (Doc. 19-1 at 2.) McCauley is “female,” 15 16 “African American,” and was born in 1959. 17 18 (Doc. 9 at 4-5.) 19 20 In or around 2012, McCauley’s 21 22 immediate supervisor, “Art,” who is 23 24 “Caucasian, male,” became aware that 25 26
27 motion for summary judgment.”). 28 1 2 McCauley was over 50 years old. (Doc. 9 3 4 at 5; Doc. 19-1 at 2.) Afterward, Art 5 6 mistreated McCauley in a variety of ways: 7 8 ▪ First, Art refused to train McCauley on 9 10 the store’s new computer system, even 11 12 though she was qualified to work on this 13 14 system and another supervisor instructed Art 15 16 to provide training to her. (Doc. 9 at 5.) Art 17 18 also refused to train another one of 19 20 McCauley’s co-workers who was over 50 21 22 years old. (Id.) The only co-workers who 23 24 received computer training from Art were 25 26 under 50 years old. (Id.) 27 28 1 2 ▪ Second, Art asked McCauley to transfer 3 4 to the Deli Department. (Doc. 19-1 at 2.) 5 6 When McCauley refused the transfer request 7 8 (and other subsequent requests) because a 9 10 transfer would result in a loss of seniority 11 12 benefits, Art reduced McCauley’s hours 13 14 “from 40 hours to 20 hours.” (Doc. 9 at 5; 15 16 Doc. 19-1 at 2.) The resulting loss of income 17 18 caused McCauley to “lose [her] apartment 19 20 unit and medical insurance.” (Doc. 9 at 5.) 21 22 ▪ Third, Art also changed McCauley’s 23 24 work schedule “11 times” following her 25 26 refusal to accept the transfer, such that she 27
28 1 2 “had to arrive at work and wait six (6) hours 3 4 prior to [her] start time, even though [she] 5 6 was only scheduled to work four (4) hours.” 7 8 (Doc. 9 at 5; Doc. 19-1 at 2.) “[O]ther male 9 10 younger Caucasian clerks, with significantly 11 12 less seniority . . . were given preferential 13 14 treatment in that they were allowed to choose 15 16 their work schedule, given more hours and 17 18 overtime.” (Doc. 19-1 at 2.) The change in 19 20 McCauley’s work schedule made it 21 22 impossible for her to take public 23 24 transportation, which required her to walk, 25 26 which in turn “aggravated [her] medical 27 28 1 2 condition.” (Id.) The change in work 3 4 schedule also forced McCauley to do her job 5 6 without proper sleep. (Doc. 9 at 5.) 7 8 ▪ Fourth, one of Art’s friends falsely 9 10 accused McCauley of fighting. (Doc. 9 at 5.) 11 12 When the union investigated this claim, “no 13 14 fighting [was] found.” (Id.) 15 16 ▪ Fifth, when McCauley asked Art to 17 18 provide her with training on “company 19 20 procedures,” because such training “would 21 22 have enhanced [her] career with Fry’s,” Art 23 24 refused her request and instead “gave a 25 26 younger, lighter-skinned bi-racial 27 28 1 2 (Black/Hispanic) male clerk, the same 3 4 opportunities and benefits that [McCauley] 5 6 was denied.” (Doc. 19-1 at 3.)7 7 8 Beginning in 2013, and “on a continuous 9 10
11 7 The SAC also alleges that (1) a different 12 13 supervisor named “Josh” “harassed” 14 15 McCauley at some unspecified point in time 16 17 by filing a complaint against her and not 18 19 allowing her to leave the store until she 20 21 signed it, and (2) an unspecified supervisor 22 23 “followed [McCauley] as [she] worked with 24 25 a camera phone and took pictures of [her].” 26 27 (Doc. 9 at 5.) 28 1 2 basis” afterward, McCauley filed charges of 3 4 discrimination against Fry’s with the Arizona 5 6 Attorney General’s Office, Civil Rights 7 8 Division. (Doc. 19-1 at 3.) 9 10 In February 2015, McCauley “went on a 11 12 medical leave of absence due to my medical 13 14 condition.” (Doc. 19-1 at 3.) It appears, 15 16 although it’s not clear, that the medical leave 17 18 related to McCauley’s loss of her toe and 19 20 partial loss of her foot. (Doc. 9 at 5.) 21 22 Additionally, at some point after February 23 24 2016, McCauley began to suffer from “partial 25 26 blindness” due to an allergic reaction to blood 27 28 1 2 thinners. (Id. at 4-5.) 3 4 In February 2016, Fry’s discharged 5 6 McCauley. Although the SAC does not 7 8 allege why Fry’s made the termination 9 10 decision—it offers only the temporal 11 12 observation that “Fry’s fired me after losing 13 14 my toe and partial foot” (Doc. 9 at 5) and 15 16 focuses mostly on the alleged acts of 17 18 discrimination that preceded the firing— 19 20 McCauley asserted in her EEOC charge that 21 22 Fry’s “discharged me because I was on a 23 24 medical leave of absence for one (1) year.” 25 26 (Doc. 19-1 at 3.) 27 28 1 2 On July 20, 2016, McCauley filed a 3 4 charge of discrimination with the EEOC. 5 6 (Doc. 19-1.) 7 8 On September 17, 2018, the EEOC opted 9 10 not to pursue charges against Fry’s and 11 12 provided McCauley with a right-to-sue letter. 13 14 (Doc. 1 at 6.) 15 16 DISCUSSION 17 18 I. Motion to Dismiss 19 20 Fry’s moves to dismiss the complaint 21 22 because (1) all claims, except the apparent 23 24 wrongful discharge claim under the 25 26 Americans with Disabilities Act (“ADA”), 27 28 1 2 are time-barred because McCauley failed to 3 4 file an EEOC charge within 300 days of the 5 6 challenged conduct, and (2) the ADA claim 7 8 fails under Rule 12(b)(6). (Doc. 19.) 9 10 A. Legal Standard 11 12 “[T]o survive a motion to dismiss, a party 13 14 must allege ‘sufficient factual matter, 15 16 accepted as true, to state a claim to relief that 17 18 is plausible on its face.’” In re Fitness 19 20 Holdings Int’l, Inc., 714 F.3d 1141, 1144 (9th 21 22 Cir. 2013) (quoting Ashcroft v. Iqbal, 556 23 24 U.S. 662, 678 (2009)). “A claim has facial 25 26 plausibility when the plaintiff pleads factual 27 28 1 2 content that allows the court to draw the 3 4 reasonable inference that the defendant is 5 6 liable for the misconduct alleged.” Id. 7 8 (quoting Iqbal, 556 U.S. at 678). “[A]ll well- 9 10 pleaded allegations of material fact in the 11 12 complaint are accepted as true and are 13 14 construed in the light most favorable to the 15 16 non-moving party.” Id. at 1144-45 (citation 17 18 omitted). However, the court need not accept 19 20 legal conclusions couched as factual 21 22 allegations. Iqbal, 556 U.S. at 679-80. The 23 24 court also may dismiss due to “a lack of a 25 26 cognizable legal theory.” Mollett v. Netflix, 27 28 1 2 Inc., 795 F.3d 1062, 1065 (9th Cir. 2015) 3 4 (citation omitted). 5 6 Although the Iqbal pleading standard 7 8 applies to pro se complaints, they “must be 9 10 held to less stringent standards than formal 11 12 pleadings drafted by lawyers.” Hebbe v. 13 14 Pliler, 627 F.3d 338, 342 (9th Cir. 2010) 15 16 (citing Erickson v. Pardus, 551 U.S. 89, 94 17 18 (2007)). Courts “have an obligation where 19 20 the petitioner is pro se, particularly in civil 21 22 rights cases, to construe the pleadings 23 24 liberally and to afford the petitioner the 25 26 benefit of any doubt.” Bretz v. Kelman, 773 27 28 1 2 F.2d 1026, 1027 n.1 (9th Cir. 1985). But 3 4 while entitled to “great leeway,” a pro se 5 6 litigant’s pleadings “nonetheless must meet 7 8 some minimum threshold in providing a 9 10 defendant with notice of what it is that it 11 12 allegedly did wrong.” Brazil v. U.S. Dep't of 13 14 Navy, 66 F.3d 193, 199 (9th Cir. 1995). 15 16 B. Time-Barred Claims 17 18 The SAC asserts claims for race, sex, age, 19 20 and disability discrimination. (Doc. 9 at 4.) 21 22 Fry’s argues that all of these claims, except 23 24 for any claim arising from McCauley’s 25 26 termination, are time-barred. (Doc. 19 at 4- 27 28 1 2 6.) 3 4 “Title VII requires that a plaintiff timely 5 6 file charges of discrimination with the EEOC 7 8 and receive a right to sue letter from the 9 10 EEOC prior to bringing a Title VII claim in 11 12 federal court.” Taxey v. Maricopa Cty., 237 13 14 F. Supp. 2d 1109, 1113 (D. Ariz. 2002). Such 15 16 a charge is timely if made “by or on behalf of 17 18 the person aggrieved within three hundred 19 20 days after the alleged unlawful employment 21 22 practice occurred.” 42 U.S.C. § 2000e- 23 24 5(e)(1). 25 26 Here, McCauley filed her EEOC charge 27 28 1 2 on July 20, 2016. (Doc. 19-1 at 3.) Thus, for 3 4 an unlawful employment practice to be 5 6 actionable in the present lawsuit, it must have 7 8 occurred on or after September 24, 2015. 9 10 “A discrete discriminatory act ‘occurred’ 11 12 on the day it ‘happened.’” Nat’l R.R. 13 14 Passenger Corp. v. Morgan, 536 U.S. 101, 15 16 110 (2002). Examples of “[d]iscrete 17 18 discriminatory acts” include “termination, 19 20 failure to promote, denial of transfer, or 21 22 refusal to hire.” Id. at 114. “[D]iscrete 23 24 discriminatory acts are not actionable if time 25 26 barred, even when they are related to acts 27 28 1 2 alleged in timely filed charges.” Id. at 113. 3 4 Furthermore, “discrete acts that fall within 5 6 the statutory time period do not make timely 7 8 acts that fall outside the time period.” Id. at 9 10 112. 11 12 Here, McCauley’s EEOC charge alleges 13 14 she was discharged in February 2016. (Doc. 15 16 19-1 at 3.) She filed the EEOC charge on 17 18 July 20, 2016, so any discrimination claim 19 20 arising from her discharge was pursued 21 22 within the statutory time period and remains 23 24 actionable. However, McCauley also stated 25 26 in her EEOC charge that “[b]eginning 27 28 1 2 February of 2015, I went on a medical leave 3 4 of absence due to my medical condition.” 5 6 (Id.) The next event alleged in the charge is 7 8 that “[o]n February of 2016, Respondent 9 10 discharged me because I was on a medical 11 12 leave of absence for one (1) year.” (Id.) 13 14 Thus, even drawing all reasonable 15 16 inferences in favor of McCauley, none of the 17 18 discriminatory conduct discussed in the SAC 19 20 (other than the termination) could have 21 22 occurred within the 300-day window. 23 24 Although the timeframe of the SAC is not 25 26 explicit, it’s clear that McCauley was 27 28 1 2 physically present at work when the alleged 3 4 acts of discrimination (other than the 5 6 discharge) took place. (Doc. 9 at 5 [alleging 7 8 a refusal to train McCauley on computers at 9 10 work, changed working hours, a reduced 11 12 number of working hours, being forced to 13 14 stay at work late to sign a complaint, and a 15 16 request to move to a different department].) 17 18 Yet the EEOC charge makes clear that 19 20 McCauley stopped being physically present 21 22 at Fry’s in February 2015, when she began 23 24 her one-year term of medical leave. Thus, all 25 26 of the alleged acts of discrimination (other 27 28 1 2 than the termination) took place more than 3 4 300 days before McCauley filed her EEOC 5 6 charge in July 2016, meaning that any claims 7 8 pertaining to those alleged acts of 9 10 discrimination are time-barred. 11 12 C. Failure to State a Claim 13 14 Fry’s argues that McCauley has failed to 15 16 state a claim upon which relief can be granted 17 18 regarding her termination. (Doc. 19 at 6-8.) 19 20 Fry’s contends that the “sole allegation in the 21 22 SAC regarding the termination” is that Fry’s 23 24 fired McCauley “after losing her toe and 25 26 partial foot.” (Doc. 19 at 6, emphasis in 27 28 1 2 original). 3 4 The Court agrees that McCauley’s claim 5 6 related to her termination appears to be a 7 8 claim of disability discrimination under the 9 10 ADA. Although the SAC broadly alleges 11 12 that McCauley was discriminated against due 13 14 to her age, sex, race, disability, and because 15 16 she filed charges with the EEOC (Doc. 9 at 4- 17 18 5), most of those claims appear to relate to the 19 20 other time-barred conduct. Moreover, 21 22 McCauley asserted in the EEOC charge that 23 24 she was fired “because” she was on medical 25 26 leave for one year, which suggests the 27 28 1 2 termination decision may have been 3 4 disability-related. (Doc. 19-1 at 3.) Finally, 5 6 McCauley also seemed to concede in the 7 8 EEOC charge that Fry’s didn’t terminate her 9 10 based on her race or gender, as she 11 12 acknowledged that Fry’s followed a pattern 13 14 of allowing other female and African- 15 16 American employees to remain on medical 17 18 leave for more than a year. (Id. [“I am aware 19 20 of male and female Clerks (Black and 21 22 Caucasian) who have been out of work for 23 24 more than 1 year, however, they were not 25 26 discharged like I was.”].) 27 28 1 2 Accordingly, the Court will assess the 3 4 sufficiency of the SAC under the ADA, 5 6 which prohibits “discriminat[ion] against a 7 8 qualified individual on the basis of disability 9 10 in regard to . . . discharge of employees.” 42 11 12 U.S.C. § 12112(a). To establish a prima facie 13 14 case of unlawful discharge under the ADA, 15 16 an employee must show that “(1) she is a 17 18 disabled person within the meaning of the 19 20 ADA; (2) she is a qualified individual, 21 22 meaning she can perform the essential 23 24 functions of her job; and (3) [her employer] 25 26 terminated her because of her disability.” 27 28 1 2 Nunes v. Wal-Mart Stores, Inc., 164 F.3d 3 4 1243, 1246 (9th Cir. 1999). 5 6 Here, the SAC does not establish a prima 7 8 facie case. As to the first element, a disability 9 10 is defined as a “physical . . . impairment that 11 12 substantially limits one or more major life 13 14 activities,” and “standing” and “walking” 15 16 qualify as major life activities. 42 U.S.C. § 17 18 12102(1)-(2). The SAC, however, provides 19 20 no detail whatsoever about how (if at all) 21 22 McCauley’s loss of her toe and partial loss of 23 24 her foot have limited her major life activities. 25 26 The partial loss of a foot does not necessarily 27 28 1 2 qualify as a disability under the ADA. 3 4 Feltman v. BNSF Railway Co., Inc., 2018 5 6 WL 529952, *8 (N.D. Ala. 2018) (“Feltman 7 8 has not demonstrated that his partially 9 10 amputated right foot is an actual ‘disability’ 11 12 under the ADA, because he has not shown 13 14 that his foot condition limits any of his major 15 16 life activities.”). Moreover, although the 17 18 SAC also alleges that McCauley now suffers 19 20 from “near blindness” (Doc. 9 at 4), it 21 22 clarifies that McCauley didn’t begin to suffer 23 24 from this condition until “[a]fter the firing of 25 26 Fry’s,” when she had an allergic reaction to 27 28 1 2 blood thinners. (Id. at 5, emphasis added.) 3 4 Thus, it cannot provide the foundation for her 5 6 ADA claim. 7 8 Second, the SAC also fails to specify the 9 10 essential functions of McCauley’s job or 11 12 allege that she retained the ability to perform 13 14 those essential functions following the loss of 15 16 her toe and part of her foot. If anything, the 17 18 materials submitted by McCauley suggest 19 20 she wasn’t able to perform the essential 21 22 functions of her job after sustaining these 23 24 losses—after all, the EEOC charge states that 25 26 McCauley was forced to go on medical leave, 27 28 1 2 which lasted for a year, beginning in 3 4 February 2015. 5 6 Third, and most important, the SAC fails 7 8 to allege a causal relationship between 9 10 McCauley’s alleged disability and her 11 12 discharge. The allegation that “Fry’s fired 13 14 [her] after losing her toe and partial foot” is a 15 16 statement of temporal relationship, not of 17 18 causation, and McCauley seemed to allege in 19 20 her EEOC charge that she was fired for taking 21 22 too much leave, not because of disability- 23 24 related discrimination. (Doc. 19-1 at 3 25 26 [“[Fry’s] discharged me because I was on a 27 28 1 2 medical leave of absence for one (1) year.”].) 3 4 For these reasons, the Court agrees with 5 6 Fry’s that the SAC should be dismissed in its 7 8 entirety. 9 10 II. Motion to Amend 11 12 McCauley has filed a motion for leave to 13 14 file a TAC, arguing that in her previous two 15 16 amendments, “nothing was added to the 17 18 Complaint[,] know [sic] words or text was 19 20 added to the Complaint [sic].” (Doc. 35 at 1- 21 22 2.) In response, Fry’s argues that the request 23 24 for leave to amend should be denied because 25 26 (1) it fails to comply with Local Rule 15.1 27 28 1 2 and (2) amendment would be futile to the 3 4 extent McCauley wishes to use the TAC to 5 6 incorporate the facts set forth in her response 7 8 to the motion to dismiss. (Doc. 36 at 2-3.) 9 10 The Court agrees with Fry’s. First, the 11 12 motion for leave to amend is deficient under 13 14 Local Rule 15.1(a). That rule provides that 15 16 “[a] party who moves for leave to amend a 17 18 pleading must attach a copy of the proposed 19 20 amended pleading as an exhibit to the 21 22 motion, which must indicate in what respect 23 24 it differs from the pleading which it amends, 25 26 by bracketing or striking through the text to 27 28 1 2 be deleted and underlining the text to be 3 4 added.” McCauley did not comply with 5 6 those requirements here—her one-page 7 8 motion doesn’t specify, with any precision, 9 10 what changes she would like to make in the 11 12 TAC and doesn’t include a redlined version 13 14 of the TAC showing how it differs from the 15 16 SAC. 17 18 Noncompliance with LRCiv 15.1 is a 19 20 permissible ground for denying a motion for 21 22 leave to amend. Indeed, without the 23 24 proposed new version of the complaint, it is 25 26 difficult to “make a determination on whether 27 28 1 2 such amendment would be futile.” 3 4 Weymouth v. Cty. of Maricopa, 2019 WL 5 6 429894, *5 (D. Ariz. 2019). See also Aguirre 7 8 v. Amchem Prod. Inc., 2012 WL 760627, *2 9 10 (D. Ariz. 2012) (“[P]laintiffs have not 11 12 properly sought leave to amend because they 13 14 have not filed a motion attaching a copy of 15 16 the proposed amended pleading. See LRCiv. 17 18 15.1. Absent that, we cannot evaluate 19 20 whether amendment would be futile.”). 21 22 Second, although pro se litigants such as 23 24 McCauley should be granted significant 25 26 latitude when it comes to being afforded 27 28 1 2 leave to cure pleading deficiencies,8 such 3 4 leave would be inappropriate here because 5 6 McCauley’s response to the motion to 7 8 dismiss makes clear that further amendment 9 10 would be futile. Notably, McCauley suggests 11 12 in her response that the termination decision 13 14 wasn’t based on any sort of disability-related 15 16
17 Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th 18 8 19 Cir. 2012) (“A district court should not 20 21 dismiss a pro se complaint without leave to 22 23 amend unless it is absolutely clear that the 24 25 deficiencies of the complaint could not be 26 27 cured by amendment.”) (citations omitted). 28 1 2 animus held by Fry’s—instead, she contends 3 4 that Fry’s terminated her for absenteeism (i.e, 5 6 not coming to work after exhausting all of her 7 8 leave time) and then asserts the termination 9 10 decision was wrongful because Fry’s 11 12 miscalculated the amount of leave to which 13 14 she was entitled. (Doc. 31 at 3-4.) Whether 15 16 or not this is true, it doesn’t show that, if 17 18 afforded yet another opportunity to amend 19 20 her complaint, McCauley could supply new 21 22 factual allegations to cure the deficiencies 23 24 identified in Part I.C above. 25 26 Accordingly, IT IS ORDERED that: 27 28 (1) The motion to dismiss the SAC 4 . ;| (Doc. 26) is granted; (2)The SAC dismissed’ with
prejudice; (3) The motion for leave to amend (Doc. 35) is denied; and
(4) The Clerk of Court shall terminate this
action and enter judgment 18 19 accordingly. Dated this 8th day of November, 2019. 22 23 .
25 ~ "Dominic W. Lanza 6 United States District Judge 27 28
- 49 -