Miller v. Ascenda USA Incorporated

Opinion

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

9 Robert L. Miller, Jr, No. CV-22-02172-PHX-JJT

10 Plaintiff, ORDER

11 v.

12 Ascenda USA Incorporated, et al.,

13 Defendants. 14 15 At issue is Defendant Maplebear Inc. dba Instacart’s (“Instacart”) Motion to 16 Dismiss (Doc. 34, MTD) Plaintiff’s Amended Complaint (Doc. 17, Am. Compl.). Pro Se 17 Plaintiff Robert L. Miller Jr. filed a Response (Doc. 40, Resp.), and Instacart filed a Reply 18 (Doc. 41, Reply). 19 I. BACKGROUND 20 Plaintiff initially filed a Complaint against only his former employer, Ascenda USA 21 Inc. dba 24/7 InTouch (“InTouch”). (Doc. 1, Compl.) Plaintiff then filed an Amended 22 Complaint against InTouch, two of its managers, and Instacart, alleging claims of 23 discrimination in employment pursuant to Title VII of the Civil Rights Act of 1964 (“Title 24 VII”), the Age Discrimination in Employment Act of 1967 (“ADEA”), the Americans with 25 Disabilities Act of 1990 (“ADA”), Section 1981 of the Civil Rights Act of 1866 (“Section 26 1981”), and the Arizona Civil Rights Act, (“ACRA”), A.R.S. § 41-1463. 27 InTouch employed Plaintiff between July 27, 2017 and July 8, 2020 (Am. Compl. 28 ¶¶ 1, 89), and Plaintiff’s claims arise out of several alleged acts of discrimination occurring 1 over the course of his employment. Plaintiff alleges he is “dark-skinned Black,” 58 years 2 old, and has disabilities including “depression, anxiety, and related illnesses including 3 chronic back and digestive system illness.” (Am. Compl. at 4 of 6.) Plaintiff states his 4 supervisors favored “lighter skinned, younger agents.” (Am. Compl. ¶¶ 8, 28.) According 5 to Plaintiff, “a dark-skinned Black man” quit his job because InTouch passed him over for 6 promotions given to “light-skinned Team Leads ranked below him.” (Am. Compl. ¶¶ 33– 7 34.) When Plaintiff asked for shift changes, his supervisors used “false shift-workload 8 information and false pay-rate information” to deny them, and younger, lighter-skinned 9 coworkers did not experience the same treatment. (Am. Compl. ¶¶ 20-21.) InTouch 10 supervisors refused to communicate with Plaintiff, caused him to lose his dignity, made 11 outrageous claims about his work, expressed insensitivity to his medical and familial 12 situations, and harassed him when, again, other lighter-skinned coworkers did not 13 experience the same treatment. (Am. Compl. ¶¶ 48, 49, 58, 69, 75-79.) 14 Instacart is a client of InTouch. During his employment at InTouch, Plaintiff worked 15 on the “Instacart campaign,” where his employer supported Instacart’s grocery services, 16 and it is during this time he claims he experienced harassment and discrimination from 17 Instacart. (Am. Compl. ¶¶ 5, 30.) After InTouch promoted Plaintiff temporarily to Team 18 Lead, he alleges Instacart managers did not provide him with formal training or adequate 19 support, which was a “form of harassment.” (Am. Compl. ¶ 37.) 20 Separate from the Amended Complaint, Plaintiff’s Response presents additional 21 facts about the relationship between himself, InTouch, and Instacart. Plaintiff describes the 22 relationship between Instacart and InTouch as such: 23 Instacart is an employer . . . in San Francisco, CA . . . . Instacart . . . hired 24 general contractor 24/7 InTouch to use its telecommunications centers including Mesa, AZ, to service and support Instacart’s grocery 25 shopping/grocery delivery operations. Which includes handling Instacart 26 consumers’ problems when those consumers have challenges with their grocery orders . . . 24/7 InTouch executed Instacart’s service and support 27 operations through its own employees, or subcontractors, who physically 28 worked in the 24/7 InTouch telecommunications centers and were not employees of Instacart. I reiterate that we were not employees of Instacart. 1 While I was not an Instacart employee, at some point Instacart itself had direct control over the [subcontractor] work that I was doing. 2 3 (Resp. at 2 of 6 (brackets in original).) In conjunction with the Instacart campaign, the 4 InTouch Quality Assurance Department monitored and managed a skill-based system 5 facilitated through InTouch’s computer software and telephones. (Resp. at 2 of 6.) Through 6 this system, the Quality Assurance Department could deem agents insubordinate if they were 7 not “showing as ‘live’ and ready to handle ops calls.” (Resp. at 2 of 6.) At some point during 8 the campaign, Instacart could “directly facilitate those operations.” (Resp. at 3 of 6.) During 9 his time as an agent, Instacart allegedly accused Plaintiff of “being insubordinate” and 10 harassed him both with his workload and when they set “the daily computer controls and 11 skills at [his] station,” leading to his termination. (Resp. at 2–4 of 6.) 12 Instacart now moves to dismiss all of Plaintiff’s claims against it under Fed. R. of 13 Civ. P. 12(b)(6). 14 II. LEGAL STANDARD 15 Rule 12(b)(6) is designed to “test[] the legal sufficiency of a claim.” Navarro v. 16 Block, 250 F.3d 729, 732 (9th Cir. 2001). A dismissal under Rule 12(b)(6) for failure to 17 state a claim can be based on either: (1) the lack of a cognizable legal theory; or (2) the 18 absence of sufficient factual allegations to support a cognizable legal theory. Balistreri v. 19 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). When analyzing a complaint for 20 failure to state a claim, the well-pled factual allegations are taken as true and construed in 21 the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 22 (9th Cir. 2009). A plaintiff must allege “enough facts to state a claim to relief that is 23 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has 24 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 25 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 26 Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility 27 standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer 28 possibility that a defendant has acted unlawfully.” Id. 1 “While a complaint attacked by a Rule 12(b)(6) motion does not need detailed 2 factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief 3 requires more than labels and conclusions, and a formulaic recitation of the elements of a 4 cause of action will not do.” Twombly, 550 U.S. at 555 (cleaned up and citations omitted). 5 Legal conclusions couched as factual allegations are not entitled to the assumption of truth 6 and therefore are insufficient to defeat a motion to dismiss for failure to state a claim. Iqbal, 7 556 U.S. at 679–80. However, “a well-pleaded complaint may proceed even if it strikes a 8 savvy judge that actual proof of those facts is improbable, and that ‘recovery is very remote 9 and unlikely.’” Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 10 (1974)). 11 III. ANALYSIS 12 A. Exhaustion of Administrative Remedies 13 To begin with, Plaintiff failed to exhaust administrative remedies for his claims 14 against Instacart under Title VII, the ADA, the ADEA, and the ACRA. For a Title VII 15 claim, a plaintiff must first exhaust any administrative remedy available under 42 U.S.C. 16 § 2000e-5 by filing a charge with the Equal Employment Opportunity Commission 17 (“EEOC”). Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988). 18 When the plaintiff has not yet received a right-to-sue letter from the EEOC, his Title VII 19 claim is subject to dismissal. Id. Filing a timely charge of discrimination with the EEOC or 20 a state or local agency that regulates unlawful employment practices is also a mandatory 21 prerequisite to maintaining an ADA action for employment discrimination. Santa Maria v. 22 Pac. Bell, 202 F.3d 1170, 1176 (9th Cir. 2000) (overruled on other grounds); Zimmerman 23 v. State of Or. Dep’t of Justice, 983 F. Supp. 1327, 1328 (D. Or. 1997). 24 The ADEA also requires plaintiffs to file a discrimination charge with the EEOC 25 before bringing a civil action: “No civil action may be commenced by an individual under 26 this section until 60 days after a charge alleging unlawful discrimination has been filed with 27 the [EEOC].” 29 U.S.C. § 626. A similar filing requirement exists for A.R.S. § 41-1463: 28 “The ACRA . . . requires an employee to file a charge with the Arizona Civil Rights Division 1 within 180 days of an alleged violation . . . and an employee who does not do so loses her 2 right to sue[.]” Peterson v. City of Surprise, 418 P.3d 1020, 1024 (Ariz. Ct. App. 2018). 3 Here, Plaintiff filed a charge against InTouch, not Instacart. Indeed, there is no right- 4 to-sue letter concerning Instacart attached to Plaintiff’s Amended Complaint. (MTD 5 Exs. A, B.)1 This procedural defect precludes Plaintiff’s claims under Title VII, the ADA, 6 the ADEA, and the ACRA. 7 B. Employer-Employee Relationship 8 All of Plaintiff’s claims require an employee-employer relationship. Even if the 9 Court were to both construe the EEOC charge filed against InTouch as a charge against 10 Instacart and consider Plaintiff’s new allegations within the Response, Plaintiff has failed 11 to supply any facts or law supporting the proposition that Instacart and Plaintiff were in an 12 employer-employee relationship such that Plaintiff can bring employment discrimination 13 claims against Instacart. 14 Generally, Plaintiff’s additional facts alleged in the Response must be added to his 15 Amended Complaint through a motion to amend. Plaintiff is required to seek permission 16 to amend from the Court, absent Instacart’s consent. Fed. R. Civ. P. 15(a)(2). However, in 17 this instance, amendment would be futile: “A proposed [Second] Amended Complaint is 18 futile if it would be immediately subject to dismissal. Thus, the proper test to be applied 19 when determining the legal sufficiency of a proposed amendment is identical to the one 20 used when considering the sufficiency of a pleading challenged under Rule 12(b)(6).” 21 Nordyke v. King, 644 F.3d 776, 788 n.12 (9th Cir. 2011) (quotations and citations omitted), 22 aff’d on reh’g en banc on other grounds, 681 F.3d 1041 (9th Cir. 2012). Recognizing that 23 “[f]utility alone can justify the denial of a motion for leave to amend,” the Court proceeds 24 to consider Plaintiff’s claims and allegations in both the Amended Complaint and 25 Response. See Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2003). 26 1 A plaintiff’s “amended pleading must not incorporate by reference any part of the 27 preceding pleading, including exhibits.” LRCiv 15.1. With regard to InTouch, Plaintiff attached a copy of a right-to-sue letter to his original Complaint, but neglected to attach it 28 to the Amended Complaint. Instacart attached a copy of the EEOC charge filed against InTouch and corresponding right-to-sue letter to its Motion. (MTD Exs. A, B.) 1 All of Plaintiff’s claims require allegations that support the conclusion that Instacart 2 was his employer. Title VII provides protection to employers from certain employer 3 practices. 42 § U.S.C. 2000e-2. Likewise, sections 12112 to 12117 of the ADA concern 4 employer-employee relationships: “Title I covers all aspects of the employer-employee 5 relationship . . . it does not cover other relationships, which are addressed elsewhere in the 6 ADA.” Fleming v. Yuma Regl. Med. Ctr., 587 F.3d 938, 942 (9th Cir. 2009). And claimants 7 seeking relief under the ADEA “must establish [themselves] as an employee.” Barnhart v. 8 New York Life Ins. Co., 141 F.3d 1310, 1312 (9th Cir. 1998); see also 29 U.S.C. § 623(a). 9 The Civil Rights Act of 1866 prohibits “all racial discrimination in the making of both 10 public and private contracts. . . . A claim under section 1981 is sufficient to withstand a 11 motion to dismiss if it alleges that plaintiff suffered discrimination in employment on the 12 basis of race.” Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 625 (9th Cir. 13 1988). Finally, the ACRA requires an employer-employee relationship for a plaintiff to 14 bring a claim: “We hold that Dr. Coehlo was not an employee of St. Luke’s, as that term is 15 defined in the ACRA. Accordingly, Dr. Coehlo’s discrimination charge did not give the 16 [Arizona Civil Rights] Division jurisdiction under the ACRA to conduct an investigation 17 of St. Luke’s peer review process.” St. Luke’s Health System v. State, Dept. of L., Civ. 18 Rights Div., 884 P.2d 259, 261. (Ariz. Ct. App. 1994.) 19 In his Response, Plaintiff points to two negligence cases in an attempt to support the 20 proposition that Instacart employed Plaintiff. In both cases, subcontractors sustained 21 physical injuries because of a general contractor’s negligence. Manhattan-Dickman Const. 22 Co. v. Shawler, 558 P.2d 894 (Ariz. 1976); Lewis v. N.J. Riebe Enters., Inc., 825 P.2d 5 23 (Ariz. 1992). As Instacart’s Reply notes, Shawler concerned a general contractor’s failure 24 to use reasonable care as it exercised physical control over a worksite containing a 25 dangerous condition. 558 P.2d at 894. The Arizona Supreme Court determined that a jury 26 could find a general contractor liable for negligence based on its failure to exercise 27 reasonable care resulting in physical injuries sustained by the subcontractor’s employees. 28 Id. Similarly, in Lewis, the Court upheld the trial court’s finding that a general contractor 1 was negligent when it failed to provide a safe workspace to subcontractor employees: “[a 2 general contractor] may be liable under the rule stated in [§ 414] unless he exercises his 3 supervisory control with reasonable care so as to prevent the work which he has ordered to 4 be done from causing injury to others.” 825 P.2d at 5. Both of these cases are 5 distinguishable from Plaintiff’s. 6 Primarily, Plaintiff has not provided any facts to support the proposition that 7 Instacart employed him or physically controlled his working environment. None of 8 Instacart’s alleged behavior is applicable to the principle relied upon in Shawler: “One who 9 entrusts work to an independent contractor, but who retains the control of any part of the 10 work, is subject to liability for physical harm to others for whose safety the employer owes 11 a duty to exercise reasonable care, which is caused by his failure to exercise his control 12 with reasonable care.” Id. at 898. Most importantly, Plaintiff has not alleged any facts to 13 support the idea that he was in an employee-employer relationship with Instacart. As such, 14 he cannot show that Instacart owed him a duty of care. 15 Secondarily, even if Instacart owed him a duty of care, Plaintiff’s Amended 16 Complaint is neither based on an alleged physical injury nor negligence principles. Plaintiff 17 has not alleged that he suffered any physical injury. He has only alleged discriminatory 18 conduct including termination of employment, failure to accommodate a disability, unequal 19 terms and conditions of employment, retaliation, and harassment. (Am. Compl. at 4.) For 20 these reasons, Plaintiff’s reliance on Shawler and Lewis is misplaced as the facts and legal 21 theories of each of these cases are distinguishable from Plaintiff’s discrimination claims. 22 Next, Plaintiff cites A.R.S. § 23-902(B)(C), Arizona’s Workers’ Compensation 23 statute, as grounds for suit against Instacart. The sole and exclusive forum for workers’ 24 compensation claims is the Industrial Commission of Arizona. Sandoval v. Salt River 25 Project Agric. Improvement & Power Dist., 571 P.2d 706, 710 (Ariz. Ct. App. 1977); see 26 also Hixon v. State Comp. Fund, 565 P.2d 898, 899 (Ariz. Ct. App. 1977); S.H. Kress & 27 Co. v. Super. Ct. of Maricopa Cnty., 182 P.2d 931, 933 (Ariz. 1947). As such, this Court 28 is not the proper forum for a Workman’s Compensation claim. 1 Finally, Plaintiff asserts that he has a claim under the doctrine of respondeat 2 superior and that discovery may yield evidence that Instacart owed him a non-delegable 3 duty. (Resp. at 5 of 6.) Again, this theory fails because Plaintiff has not provided facts 4 supporting the assertion he was employed by Instacart, nor has Plaintiff provided facts that 5 support the proposition InTouch and Instacart had an employee-employer relationship. 6 As the Supreme Court of Arizona has noted, the doctrine of respondeat superior 7 “generally holds an employer vicariously liable for the negligent work-related actions of 8 its employees.” Engler v. Gulf Interstate Engr., Inc., 280 P.3d 599, 601 (Ariz. 2012) 9 (quoting Tarron v. Bowen Mach. & Fabricating, Inc., 235 P.3d 1030, 1033 (Ariz. 2010)). 10 Employers are “vicariously liable” for the actions of their employees when an “employee 11 is acting within the scope of employment when the accident occurs.” Id. at 602 (citing State 12 v. Super. Ct. (Rousseau), 524 P.2d 951, 953 (1974)). In situations where a contractor has 13 employed sub-contractor employees, the Arizona Supreme Court has explained that 14 employers are not “liable for the negligence of an independent contractor” unless the 15 employer has delegated the “performance of a special duty to an independent contractor.” 16 Wiggs v. City of Phoenix, 10 P.3d 625, 627 (Ariz. 2000) (citation omitted). 17 Because Plaintiff agrees he was not an employee of Instacart and has not alleged facts 18 that suggest an employer-employee relationship between InTouch and Instacart, the doctrine 19 of respondeat superior is inapplicable. (Resp. 2 of 6.) This theory also fails because Plaintiff 20 has not alleged any facts to support the proposition that Instacart owed him a special duty. 21 Lastly, these theories are negligence theories, and Plaintiff has not pled a negligence cause 22 of action. For these reasons, the doctrine of respondeat superior is inapplicable and the 23 theory that Instacart owed Plaintiff a non-delegable duty is unsupported. 24 Four of Plaintiff’s claims against Instacart fail on account of a procedural defect: 25 Plaintiff’s failure to exhaust his administrative remedies. All five claims fail because 26 Plaintiff has not supplied law or facts to support the conclusion that Plaintiff was in an 27 employer-employee relationship with Instacart. Moreover, Plaintiff’s proposed 28 amendments to his Amended Complaint found in the Response would be futile. 1 IT IS THEREFORE ORDERED granting Defendant Instacart’s Motion to 2|| Dismiss (Doc. 34). Plaintiffs claims against Instacart are dismissed with prejudice. 3 Dated this 24th day of July, 2023. CN 4 “wok: Unie States#District Judge 6 7 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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