1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Rachel Rich Morales, No. CV-21-01622-PHX-DJH
10 Plaintiff, ORDER
11 v.
12 City of Surprise,
13 Defendant. 14 15 Pending before the Court is Defendant City of Surprise’s Motion to Dismiss 16 (Doc. 20). Plaintiff Rachel Morales has filed a Response (Doc. 25), and Defendant filed a 17 Reply (Doc. 31). For the following reasons, the Court finds that Plaintiff does not bring a 18 timely hostile work environment sexual harassment claim and that she does bring a 19 plausible retaliation claim. 20 I. Background 21 Plaintiff brings this Title VII action for a hostile work environment and retaliation 22 because of her experience as a paramedic at Defendant City of Surprise’s fire department. 23 As alleged in the First Amended Complaint (“FAC”), Plaintiff’s supervisor, Captain 24 Weston Park (“Park”), made sexual advances on her on April 4, 2019. (Doc. 19 at ¶ 16). 25 On June 16, 2019, Plaintiff reported Park’s behavior to Defendant, who “concluded that 26 Plaintiff was subjected to sexual harassment and a hostile work environment.” (Id. at ¶¶ 27 23–24). As alleged, part of the resulting disciplinary action prohibited Park “from working 28 any overtime during Plaintiff’s designated shifts to prevent Plaintiff” from encountering 1 the supervisor. (Id. at ¶ 25). 2 On March 30, 2020, Plaintiff “experienced symptoms of irregular and slow heart 3 rate and dizziness” and was seen by a cardiologist. (Id. at ¶ 38). Plaintiff tried to get “light 4 duty work” but her claim, which was filed by Moore, had been denied despite the fact that 5 others with similar claims had been offered light duty options. (Id. at ¶¶ 38, 40). Plaintiff 6 believes this denial was a form of retaliation. (Id. at ¶ 43). 7 On October 20, 2020, Plaintiff was working a shift on an ambulance and realized 8 that Park was working the same shift on a different ambulance. (Id. at ¶ 46). Upon 9 realizing this, Plaintiff alleges she suffered from a “full-blown panic attack” because she 10 and Park “might be stuck in the hospital’s small records room where emergency transport 11 personnel completed file work.” (Id. at ¶ 49). She returned to the Fire Station with her 12 colleagues where Battalion Chief Autry Cheatham told her the “department will not be held 13 hostage to your demands.” (Id. at ¶ 54). Plaintiff also told her colleagues during that 14 meeting that Park had sexually assaulted her on other occasions, and she said she had not 15 reported those assaults because she lacked proof and feared her peers would not believe 16 her. (Id. at ¶ 55). 17 Plaintiff later learned that she “may be required to work overtime” on the same shift 18 as Park. (Id. at ¶ 66). She alleges Defendant’s “failure to follow its own practices and 19 disciplinary/remedial action in allowing Captain Park to work on Plaintiff’s shift is a failure 20 to provide a safe, harassment free working environment.” (Id. at ¶ 69). She alleges that 21 other male employees had been effectively separated from working together due to their 22 “personality conflicts . . . .” (Id. at ¶ 72). 23 Finally, on April 1, 2021, Plaintiff alleges she learned that the department’s Chief 24 Brenden Espie and Captain Mike Payne made disparaging comments about her. (Id. at ¶¶ 25 73, 75). 26 Plaintiff filed a charge of sex discrimination and retaliation with the Equal 27 Employment Opportunity Commission (“EEOC”) on or about June 14, 2021. (Id. at ¶ 3). 28 The EEOC issued Plaintiff a notice of right to sue. (Id. at ¶ 4). And Plaintiff filed this 1 action on September 21, 2021. (Doc. 1). Plaintiff filed her FAC on January 28, 2022. 2 Count one of the FAC alleges that Defendant discriminated against Plaintiff on the 3 basis of her sex in violation of Title VII of the Civil Rights Act of 1964. (Doc. 19 at ¶ 78). 4 This discrimination consisted of Defendant creating a hostile work environment and failing 5 to keep Park from working the same shift as Plaintiff. (Id. at ¶ 81). She claims she is 6 subject to differing work conditions as compared to the other male employees who were 7 permitted to not work together. (Id. at ¶ 83). 8 Count two alleges that she suffered from retaliatory behavior as a result of reporting 9 sexual harassment in violation of Title VII. (Id. at ¶ 87). Defendant’s allegedly retaliatory 10 behavior includes: denying her workers’ compensation request, falsely accusing her of 11 improper behavior, being told she would need to work with Park, disparaging statements, 12 and failing to provide the same protections as male colleagues. (Id.) 13 Defendant now moves to dismiss the FAC for failing to state a claim. 14 II. Legal Standard 15 A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim. 16 Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011). Complaints must make a short and 17 plain statement showing that the pleader is entitled to relief for its claims. Fed. R. Civ. P. 18 8(a)(2). This standard does not require “‘detailed factual allegations,’ but it demands more 19 than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 20 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 21 There must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. 22 While courts do not generally require “heightened fact pleading of specifics,” a plaintiff 23 must allege facts sufficient to “raise a right to relief above the speculative level.” See 24 Twombly, 550 U.S. at 555. A complaint must “state a claim to relief that is plausible on its 25 face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content 26 that allows the court to draw the reasonable inference that the defendant is liable for the 27 misconduct alleged.” Iqbal, 556 U.S. at 678. 28 Dismissal of a complaint for failure to state a claim can be based on either the “lack 1 of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable 2 legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). In 3 reviewing a motion to dismiss, “all factual allegations set forth in the complaint ‘are taken 4 as true and construed in the light most favorable to the plaintiffs.’” Lee v. City of L.A., 250 5 F.3d 668, 679 (9th Cir. 2001) (quoting Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 6 (9th Cir. 1996)). But courts are not required “to accept as true a legal conclusion couched 7 as a factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 8 265, 286 (1986)). 9 III. Discussion 10 The Court addresses each claim in turn. 11 a. Count One – Hostile Work Environment Sexual Harassment 12 Defendant argues that Plaintiff’s sexual harassment claim is untimely. To have filed 13 a timely claim, a plaintiff bringing a hostile work environment claim must file a charge 14 with the EEOC within “300 days of any act that is part of the hostile work environment.” 15 Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002). As alleged, Plaintiff 16 filed her EEOC charge on June 14, 2021. (Doc. 19 at ¶ 3).
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Rachel Rich Morales, No. CV-21-01622-PHX-DJH
10 Plaintiff, ORDER
11 v.
12 City of Surprise,
13 Defendant. 14 15 Pending before the Court is Defendant City of Surprise’s Motion to Dismiss 16 (Doc. 20). Plaintiff Rachel Morales has filed a Response (Doc. 25), and Defendant filed a 17 Reply (Doc. 31). For the following reasons, the Court finds that Plaintiff does not bring a 18 timely hostile work environment sexual harassment claim and that she does bring a 19 plausible retaliation claim. 20 I. Background 21 Plaintiff brings this Title VII action for a hostile work environment and retaliation 22 because of her experience as a paramedic at Defendant City of Surprise’s fire department. 23 As alleged in the First Amended Complaint (“FAC”), Plaintiff’s supervisor, Captain 24 Weston Park (“Park”), made sexual advances on her on April 4, 2019. (Doc. 19 at ¶ 16). 25 On June 16, 2019, Plaintiff reported Park’s behavior to Defendant, who “concluded that 26 Plaintiff was subjected to sexual harassment and a hostile work environment.” (Id. at ¶¶ 27 23–24). As alleged, part of the resulting disciplinary action prohibited Park “from working 28 any overtime during Plaintiff’s designated shifts to prevent Plaintiff” from encountering 1 the supervisor. (Id. at ¶ 25). 2 On March 30, 2020, Plaintiff “experienced symptoms of irregular and slow heart 3 rate and dizziness” and was seen by a cardiologist. (Id. at ¶ 38). Plaintiff tried to get “light 4 duty work” but her claim, which was filed by Moore, had been denied despite the fact that 5 others with similar claims had been offered light duty options. (Id. at ¶¶ 38, 40). Plaintiff 6 believes this denial was a form of retaliation. (Id. at ¶ 43). 7 On October 20, 2020, Plaintiff was working a shift on an ambulance and realized 8 that Park was working the same shift on a different ambulance. (Id. at ¶ 46). Upon 9 realizing this, Plaintiff alleges she suffered from a “full-blown panic attack” because she 10 and Park “might be stuck in the hospital’s small records room where emergency transport 11 personnel completed file work.” (Id. at ¶ 49). She returned to the Fire Station with her 12 colleagues where Battalion Chief Autry Cheatham told her the “department will not be held 13 hostage to your demands.” (Id. at ¶ 54). Plaintiff also told her colleagues during that 14 meeting that Park had sexually assaulted her on other occasions, and she said she had not 15 reported those assaults because she lacked proof and feared her peers would not believe 16 her. (Id. at ¶ 55). 17 Plaintiff later learned that she “may be required to work overtime” on the same shift 18 as Park. (Id. at ¶ 66). She alleges Defendant’s “failure to follow its own practices and 19 disciplinary/remedial action in allowing Captain Park to work on Plaintiff’s shift is a failure 20 to provide a safe, harassment free working environment.” (Id. at ¶ 69). She alleges that 21 other male employees had been effectively separated from working together due to their 22 “personality conflicts . . . .” (Id. at ¶ 72). 23 Finally, on April 1, 2021, Plaintiff alleges she learned that the department’s Chief 24 Brenden Espie and Captain Mike Payne made disparaging comments about her. (Id. at ¶¶ 25 73, 75). 26 Plaintiff filed a charge of sex discrimination and retaliation with the Equal 27 Employment Opportunity Commission (“EEOC”) on or about June 14, 2021. (Id. at ¶ 3). 28 The EEOC issued Plaintiff a notice of right to sue. (Id. at ¶ 4). And Plaintiff filed this 1 action on September 21, 2021. (Doc. 1). Plaintiff filed her FAC on January 28, 2022. 2 Count one of the FAC alleges that Defendant discriminated against Plaintiff on the 3 basis of her sex in violation of Title VII of the Civil Rights Act of 1964. (Doc. 19 at ¶ 78). 4 This discrimination consisted of Defendant creating a hostile work environment and failing 5 to keep Park from working the same shift as Plaintiff. (Id. at ¶ 81). She claims she is 6 subject to differing work conditions as compared to the other male employees who were 7 permitted to not work together. (Id. at ¶ 83). 8 Count two alleges that she suffered from retaliatory behavior as a result of reporting 9 sexual harassment in violation of Title VII. (Id. at ¶ 87). Defendant’s allegedly retaliatory 10 behavior includes: denying her workers’ compensation request, falsely accusing her of 11 improper behavior, being told she would need to work with Park, disparaging statements, 12 and failing to provide the same protections as male colleagues. (Id.) 13 Defendant now moves to dismiss the FAC for failing to state a claim. 14 II. Legal Standard 15 A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim. 16 Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011). Complaints must make a short and 17 plain statement showing that the pleader is entitled to relief for its claims. Fed. R. Civ. P. 18 8(a)(2). This standard does not require “‘detailed factual allegations,’ but it demands more 19 than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 20 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 21 There must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. 22 While courts do not generally require “heightened fact pleading of specifics,” a plaintiff 23 must allege facts sufficient to “raise a right to relief above the speculative level.” See 24 Twombly, 550 U.S. at 555. A complaint must “state a claim to relief that is plausible on its 25 face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content 26 that allows the court to draw the reasonable inference that the defendant is liable for the 27 misconduct alleged.” Iqbal, 556 U.S. at 678. 28 Dismissal of a complaint for failure to state a claim can be based on either the “lack 1 of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable 2 legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). In 3 reviewing a motion to dismiss, “all factual allegations set forth in the complaint ‘are taken 4 as true and construed in the light most favorable to the plaintiffs.’” Lee v. City of L.A., 250 5 F.3d 668, 679 (9th Cir. 2001) (quoting Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 6 (9th Cir. 1996)). But courts are not required “to accept as true a legal conclusion couched 7 as a factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 8 265, 286 (1986)). 9 III. Discussion 10 The Court addresses each claim in turn. 11 a. Count One – Hostile Work Environment Sexual Harassment 12 Defendant argues that Plaintiff’s sexual harassment claim is untimely. To have filed 13 a timely claim, a plaintiff bringing a hostile work environment claim must file a charge 14 with the EEOC within “300 days of any act that is part of the hostile work environment.” 15 Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002). As alleged, Plaintiff 16 filed her EEOC charge on June 14, 2021. (Doc. 19 at ¶ 3). Defendant argues that the FAC 17 fails to allege acts of sexual harassment that occurred within the prior three hundred days 18 of this filing, which would be August 18, 2020. 19 Plaintiff concedes that none of Park’s alleged sexual harassment occurred within the 20 three-hundred-day period because Defendant “initially met its obligation to take adequate 21 measures by taking action to prevent [Plaintiff] from working with Park.” (Doc. 25 at 11). 22 However, because Plaintiff learned on October 20, 2020, that Park was working on the 23 same shift as her, albeit in a different ambulance, Defendant failed to continue taking 24 adequate measures. (Id.) This change in remedial measures led Plaintiff to file her EEOC 25 charge. Under these circumstances, Plaintiff argues, the equitable estoppel doctrine should 26 excuse her tardy filing. 27 Courts invoke the equitable estoppel doctrine when a defendant has taken steps to 28 prevent a plaintiff from timely filing suit. Johnson v. Henderson, 314 F.3d 409, 414 (9th 1 Cir. 2002). The type of steps a defendant must take to warrant equitable estoppel amount 2 to “fraudulent concealment” in the form of “active steps to prevent the plaintiff from suing 3 in time.” Id. (cleaned up) (noting the Ninth Circuit’s adoption of the Seventh Circuit’s 4 “fraudulent concealment” requirement Cada v. Baxter Healthcare Corp., 920 F.2d 446, 5 450–51 (7th Cir. 1990)). “Fraudulent concealment necessarily requires active conduct by 6 a defendant, above and beyond the wrongdoing upon which the plaintiff’s claim is filed, to 7 prevent the plaintiff from suing in time.” Id. (cleaned up). 8 Here, allegations that Plaintiff was surprised to learn that Park was working at the 9 same time as she was do not suffice to plausibly allege Defendant fraudulently concealed 10 efforts to prevent Plaintiff from filing suit. Instead, a fair reading of the FAC shows 11 Plaintiff could have brought a suit earlier but decided not to. The Court will, therefore, 12 dismiss the hostile work environment sexual harassment claim. 13 b. Count Two – Retaliation 14 To bring a Title VII retaliation claim a plaintiff must allege that “her protected 15 activity was a but-for cause of the alleged adverse action by the employer.” Univ. of Texas 16 Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013). As alleged, Plaintiff engaged in a 17 protected activity when she reported the sexual harassment and has suffered various forms 18 of retaliation as a result, such as being forced to use personal time off so to avoid situations 19 when Park was scheduled on her same shift. (Doc. 19 at ¶ 87). 20 Defendant argues that this allegation fails to show causation because it requires too 21 much speculation about “some unknown person or persons” who “made decisions that 22 negatively impacted” Plaintiff. (Doc. 20 at 11). And yet the Court, at the motion to dismiss 23 stage, is required to draw inferences in Plaintiff’s favor. See Lee, 250 F.3d at 679. The 24 Court finds that the retaliation claim is at least plausible. 25 … 26 … 27 … 28 … 1 Accordingly, 2 IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss (Doc. 20) is granted in part and denied in part. The Court will dismiss Plaintiff's hostile work 4|| environment sexual harassment claim as untimely. 5 Dated this 2nd day of September, 2022. 6 7 ZL we □ 8 norable'Diang/. Hurfetewa 9 United States District Fudge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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