1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
J.D. O ttman, ) No. CV-23-08592-PCT-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) 11 ) ) Department of Forestry and Fire ) 12 Management, et. al, ) 13 ) ) 14 Defendants. )
15 Before the Court is Defendants’ Motion to Dismiss (Doc. 36), Plaintiff’s Response 16 (Doc. 39), and Defendants’ Reply (Doc. 40). The Court now rules as follows.1 17 I. BACKGROUND 18 Plaintiff J.D. Ottman was employed by the Arizona Department of Forestry and Fire 19 Management (“DFFM”) for nearly 10 years. (Doc. 33 at 3). On January 10, 2020, Plaintiff 20 submitted a written refusal to operate a Department of Corrections Wildland Crew to a 21 superior, Defendant Arthur, alleging that crew members were involved in dealing a 22 synthetic marijuana drug. (Id. at 3–4). Plaintiff alleges his supervisors failed to address his 23 complaint and retaliated against Plaintiff by firing him and replacing him with a younger, 24 less qualified assistant. (Id. at 4). Additionally, Plaintiff suffers from migraines (Id. at 3) 25 and alleges he was suspended for taking a sick day prior to his termination. (Id. at 5). 26
27 1 Because it would not assist in resolution of the instant issues, the Court finds the pending motions are suitable for decision without oral argument. See LRCiv. 7.2(f); Fed. 28 R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). 1 Plaintiff is currently employed by the Pinetop Fire District, which is overseen by DFFM. 2 (Id.). 3 On November 6, 2023, Plaintiff filed a Complaint against Defendant DFFM, 4 commencing this action. (Doc. 1). On March 20, 2024, Plaintiff filed a First Amended 5 Complaint (“FAC”) (Doc. 18) which added “all the involved officers in the chain of 6 command in their individual capacit[ies]” as named Defendants. (Doc. 21 at 4). On June 5, 7 2024, this Court dismissed Plaintiff’s claims against DFFM, a non-jural entity not subject 8 to suit, and the Individual Defendants in their official capacities, but granted Plaintiff leave 9 to amend as to Individual Defendants in their individual capacities. (Doc. 31). 10 On July 8, 2024, Plaintiff filed his Second Amended Complaint (“SAC”) against 11 the Individual Defendants in their individual capacities for violations of the Discrimination 12 in Employment Act (“ADEA”), the Americans with Disabilities Act (“ADA”), Title VII of 13 the Civil Rights Act (“Title VII”), and the Arizona Civil Rights Act (“ACRA”), as well as 14 for wrongful termination under the Arizona Employment Protection Act (“EPA”). (Doc. 15 33). On August 5, 2024, Defendants filed their Motion to Dismiss the SAC, arguing that 16 none of the statutory violations Plaintiff alleges provide for individual liability. (Doc. 36). 17 This Court now rules. 18 II. LEGAL STANDARD 19 To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “a 20 short and plain statement of the claim showing that the pleader is entitled to relief” so the 21 defendant is given fair notice of the claim and the grounds upon which it rests. Bell Atl. 22 Corp. v. Twombly, 550 U.S. 544, 545 (2007) (quoting Fed. R. Civ. P. 8(a)(2)). A court may 23 dismiss a complaint for failure to state a claim under Rule 12(b)(6) for two reasons: (1) 24 lack of a cognizable legal theory, or (2) insufficient facts alleged under a cognizable legal 25 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). When 26 deciding a motion to dismiss, all allegations of material fact in the complaint “are taken as 27 true and construed in the light most favorable to the nonmoving party.” Cousins v. Lockyer, 28 568 F.3d 1063, 1067 (9th Cir. 2009). 1 III. DISCUSSION 2 Defendants argue, and Plaintiff concedes, that Plaintiff’s EPA and ACRA claims 3 are time-barred by a one-year statute of limitations and therefore must be dismissed. (Doc. 4 36 at 3; Doc. 39 at 2). Thus, this Court will grant Defendants’ Motion to Dismiss with 5 respect to the Plaintiff’s EPA and ACRA claims. 6 Defendants also argue that Plaintiff’s remaining claims under the ADEA, ADA, and 7 Title VII should be dismissed as none of the statutes provide a cause of action against 8 individual defendants. (Doc. 36 at 3). Plaintiff argues that the Court should interpret case 9 law otherwise to find that the statutes do allow liability for individual defendants, or, 10 alternatively, that the Court should find Defendant Tenney liable under the “alter ego 11 doctrine.” (Doc. 39 at 7–8). 12 a. Whether the ADEA, ADA, and Title VII Provide a Cause of Action 13 Against Individual Defendants. 14 It is well-settled that individual defendants cannot be held liable under the ADEA, 15 ADA, or Title VII in the Ninth Circuit. See Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 16 587 (9th Cir. 1993) (holding that employees are not liable in their individual capacities 17 under Title VII and the ADEA); Walsh v. Nev. Dep’t of Hum. Res., 471 F.3d 1033, 1038 18 (9th Cir. 2006) (holding that individual defendants cannot be held personally liable for 19 ADA violations). Plaintiff asks this Court to disregard this precedent and instead interpret 20 the Supreme Court’s decision in Mount Lemmon Fire Dist. v. Guido to hold that individuals 21 may be held liable under the ADEA, as the ADEA is based on the Fair Labor Standards 22 Act (“FLSA”) and the FLSA allows individual liability. (Doc. 39 at 4). The Court rejects 23 Plaintiff’s argument. 24 In Mount Lemmon, the Supreme Court determined that the text of the ADEA 25 provides that state and local governments are “employers” under the statute regardless of 26 their size. Mount Lemmon Fire Dist. v. Guido, 586 U.S. 1, 8 (2018). While the Supreme 27 Court acknowledged that many aspects of the ADEA are based on the FLSA, it did not 28 even consider, let alone hold, that personal liability under the FLSA extends to ADEA 1 violations. Id. at 7. Furthermore, following the Supreme Court’s ruling in Mount Lemmon, 2 the Ninth Circuit has continued to find that liability under the ADEA does not extend to 3 individuals. See Bounchanh v. Wash. State Health Care Auth., No. 19-36059, 2020 WL 4 8922184, at *1 (9th Cir. 2020); Kelly v. Wash. State Dep’t of Transp., 776 F.App’x 426 5 (9th Cir. 2019). As this Court is bound by the Ninth Circuit’s interpretation, the Court finds 6 that the ADEA does not allow individual liability. To that end, the Court abides by the 7 Ninth Circuit’s consistent holdings that Title VII and the ADA also do not provide for 8 individual liability. See Bounchanh, 2020 WL 8922184, at *1 (finding no individual 9 liability under the ADA, ADEA, and Title VII). Therefore, Plaintiff’s claims under Title 10 VII, the ADEA, and the ADA against Defendants in their individual capacities must be 11 dismissed. 12 b. Whether the Alter Ego Doctrine Provides Individual Liability for 13 Plaintiff’s Title VII Claim Against Defendant Tenney. 14 Alternatively, Plaintiff argues in his Response that the Court should at least find 15 Defendant Tenney liable under the “alter ego” doctrine. (Doc. 39 at 8–9).
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
J.D. O ttman, ) No. CV-23-08592-PCT-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) 11 ) ) Department of Forestry and Fire ) 12 Management, et. al, ) 13 ) ) 14 Defendants. )
15 Before the Court is Defendants’ Motion to Dismiss (Doc. 36), Plaintiff’s Response 16 (Doc. 39), and Defendants’ Reply (Doc. 40). The Court now rules as follows.1 17 I. BACKGROUND 18 Plaintiff J.D. Ottman was employed by the Arizona Department of Forestry and Fire 19 Management (“DFFM”) for nearly 10 years. (Doc. 33 at 3). On January 10, 2020, Plaintiff 20 submitted a written refusal to operate a Department of Corrections Wildland Crew to a 21 superior, Defendant Arthur, alleging that crew members were involved in dealing a 22 synthetic marijuana drug. (Id. at 3–4). Plaintiff alleges his supervisors failed to address his 23 complaint and retaliated against Plaintiff by firing him and replacing him with a younger, 24 less qualified assistant. (Id. at 4). Additionally, Plaintiff suffers from migraines (Id. at 3) 25 and alleges he was suspended for taking a sick day prior to his termination. (Id. at 5). 26
27 1 Because it would not assist in resolution of the instant issues, the Court finds the pending motions are suitable for decision without oral argument. See LRCiv. 7.2(f); Fed. 28 R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). 1 Plaintiff is currently employed by the Pinetop Fire District, which is overseen by DFFM. 2 (Id.). 3 On November 6, 2023, Plaintiff filed a Complaint against Defendant DFFM, 4 commencing this action. (Doc. 1). On March 20, 2024, Plaintiff filed a First Amended 5 Complaint (“FAC”) (Doc. 18) which added “all the involved officers in the chain of 6 command in their individual capacit[ies]” as named Defendants. (Doc. 21 at 4). On June 5, 7 2024, this Court dismissed Plaintiff’s claims against DFFM, a non-jural entity not subject 8 to suit, and the Individual Defendants in their official capacities, but granted Plaintiff leave 9 to amend as to Individual Defendants in their individual capacities. (Doc. 31). 10 On July 8, 2024, Plaintiff filed his Second Amended Complaint (“SAC”) against 11 the Individual Defendants in their individual capacities for violations of the Discrimination 12 in Employment Act (“ADEA”), the Americans with Disabilities Act (“ADA”), Title VII of 13 the Civil Rights Act (“Title VII”), and the Arizona Civil Rights Act (“ACRA”), as well as 14 for wrongful termination under the Arizona Employment Protection Act (“EPA”). (Doc. 15 33). On August 5, 2024, Defendants filed their Motion to Dismiss the SAC, arguing that 16 none of the statutory violations Plaintiff alleges provide for individual liability. (Doc. 36). 17 This Court now rules. 18 II. LEGAL STANDARD 19 To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “a 20 short and plain statement of the claim showing that the pleader is entitled to relief” so the 21 defendant is given fair notice of the claim and the grounds upon which it rests. Bell Atl. 22 Corp. v. Twombly, 550 U.S. 544, 545 (2007) (quoting Fed. R. Civ. P. 8(a)(2)). A court may 23 dismiss a complaint for failure to state a claim under Rule 12(b)(6) for two reasons: (1) 24 lack of a cognizable legal theory, or (2) insufficient facts alleged under a cognizable legal 25 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). When 26 deciding a motion to dismiss, all allegations of material fact in the complaint “are taken as 27 true and construed in the light most favorable to the nonmoving party.” Cousins v. Lockyer, 28 568 F.3d 1063, 1067 (9th Cir. 2009). 1 III. DISCUSSION 2 Defendants argue, and Plaintiff concedes, that Plaintiff’s EPA and ACRA claims 3 are time-barred by a one-year statute of limitations and therefore must be dismissed. (Doc. 4 36 at 3; Doc. 39 at 2). Thus, this Court will grant Defendants’ Motion to Dismiss with 5 respect to the Plaintiff’s EPA and ACRA claims. 6 Defendants also argue that Plaintiff’s remaining claims under the ADEA, ADA, and 7 Title VII should be dismissed as none of the statutes provide a cause of action against 8 individual defendants. (Doc. 36 at 3). Plaintiff argues that the Court should interpret case 9 law otherwise to find that the statutes do allow liability for individual defendants, or, 10 alternatively, that the Court should find Defendant Tenney liable under the “alter ego 11 doctrine.” (Doc. 39 at 7–8). 12 a. Whether the ADEA, ADA, and Title VII Provide a Cause of Action 13 Against Individual Defendants. 14 It is well-settled that individual defendants cannot be held liable under the ADEA, 15 ADA, or Title VII in the Ninth Circuit. See Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 16 587 (9th Cir. 1993) (holding that employees are not liable in their individual capacities 17 under Title VII and the ADEA); Walsh v. Nev. Dep’t of Hum. Res., 471 F.3d 1033, 1038 18 (9th Cir. 2006) (holding that individual defendants cannot be held personally liable for 19 ADA violations). Plaintiff asks this Court to disregard this precedent and instead interpret 20 the Supreme Court’s decision in Mount Lemmon Fire Dist. v. Guido to hold that individuals 21 may be held liable under the ADEA, as the ADEA is based on the Fair Labor Standards 22 Act (“FLSA”) and the FLSA allows individual liability. (Doc. 39 at 4). The Court rejects 23 Plaintiff’s argument. 24 In Mount Lemmon, the Supreme Court determined that the text of the ADEA 25 provides that state and local governments are “employers” under the statute regardless of 26 their size. Mount Lemmon Fire Dist. v. Guido, 586 U.S. 1, 8 (2018). While the Supreme 27 Court acknowledged that many aspects of the ADEA are based on the FLSA, it did not 28 even consider, let alone hold, that personal liability under the FLSA extends to ADEA 1 violations. Id. at 7. Furthermore, following the Supreme Court’s ruling in Mount Lemmon, 2 the Ninth Circuit has continued to find that liability under the ADEA does not extend to 3 individuals. See Bounchanh v. Wash. State Health Care Auth., No. 19-36059, 2020 WL 4 8922184, at *1 (9th Cir. 2020); Kelly v. Wash. State Dep’t of Transp., 776 F.App’x 426 5 (9th Cir. 2019). As this Court is bound by the Ninth Circuit’s interpretation, the Court finds 6 that the ADEA does not allow individual liability. To that end, the Court abides by the 7 Ninth Circuit’s consistent holdings that Title VII and the ADA also do not provide for 8 individual liability. See Bounchanh, 2020 WL 8922184, at *1 (finding no individual 9 liability under the ADA, ADEA, and Title VII). Therefore, Plaintiff’s claims under Title 10 VII, the ADEA, and the ADA against Defendants in their individual capacities must be 11 dismissed. 12 b. Whether the Alter Ego Doctrine Provides Individual Liability for 13 Plaintiff’s Title VII Claim Against Defendant Tenney. 14 Alternatively, Plaintiff argues in his Response that the Court should at least find 15 Defendant Tenney liable under the “alter ego” doctrine. (Doc. 39 at 8–9). Plaintiff supports 16 this argument by citing to two cases that found supervisors liable under Title VII as an 17 employer. (Id. at 8 (citing Pacheco Bonilla v. Tooling & Stamping, Inc., 281 F.Supp.2d 18 336, 338 (D.P.R. 2003); Curcio v. Chinn Enter., Inc., 887 F.Supp.190, 193–94 (N.D. Ill. 19 1995))). 20 The Court rejects this argument. While the Ninth Circuit has not directly addressed 21 this issue, this District has indicated that the alter ego doctrine may provide individual 22 capacity liability under Title VII “only if it is proven that the defendant corporation is liable 23 and unable to pay any Title VII judgment because the owner has acted in a manner to justify 24 the Court to pierce the corporate veil.” Sullivan v. Cash, No. CV 05-469-TUC-RCC, 2009 25 WL 10708232, at *1 (D. Ariz. 2009). Because this Court found that DFFM is a non-jural 26 entity not subject to suit, the circumstances appropriate to invoke alter ego liability under 27 Title VII do not exist. (Doc. 31). 28 Furthermore, the Court finds the case law Plaintiff asks this Court to adopt 1 unconvincing. Neither case is binding on this Court and have, in fact, since been rejected 2 by their respective districts and circuits. See Rios v. Mun. of Guaynabo, 938 F.Supp.2d 235, 3 251–52 (D.P.R. 2013) (rejecting the alter ego doctrine as a basis for individual liability 4 under Title VII); Worth v. Tyer, 276 F.3d 249, 262 (7th Cir. 2001) (“Our rejection of the 5 ‘alter ego’ theory is further supported by Congress’ aversion to individual liability under 6 Title VII.”). Other circuits have rejected the alter ego doctrine as a basis of providing 7 individual employee liability under Title VII, as well. See Dearth v. Collins, 441 F.3d 931, 8 934 (11th Cir. 2006) (concluding “that the alter ego doctrine does not create an exception 9 to the rule against individual employee liability in Title VII cases.”). Therefore, this Court 10 declines to find Defendant Tenney liable in his individual capacity under Title VII, the 11 ADEA, or ADA pursuant to the alter ego doctrine. 12 IV. CONCLUSION 13 All told, “whether a complaint states a plausible claim for relief will . . . be a context- 14 specific task that requires the reviewing court to draw on its judicial experience and 15 common sense.” Iqbal, 556 U.S. at 679. A district court should normally grant leave to 16 amend “unless it determines that the pleading could not possibly be cured by the allegation 17 of other facts.” Cook, Perkiss & Liehe v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 247 18 (9th Cir. 1990). 19 Here, Plaintiff cannot cure his complaint against Individual Defendants in their 20 individual capacities with the addition of other facts. These claims are barred as a matter 21 of law and thus leave to amend would be futile. See Bonin v. Calderon, 59 F.3d 815, 845 22 (9th Cir. 1995) (“Futility of amendment can, by itself, justify the denial of a motion for 23 leave to amend.”). Therefore, the Plaintiff fails to satisfy the pleading standards set forth 24 by Rule 8 and 12(b)(6). Dismissal of Plaintiff’s Second Amended Complaint is both 25 warranted and necessary. 26 Accordingly, 27 IT IS ORDERED that Defendants Dave Tenney, William Boyd, John Truett, 28 Robert Arthur, and Rose Strike’s Motion to Dismiss (Doc. 36) is granted. All claims by 1| Plaintiff J.D. Ottman in his Second Amended Complaint against these defendants in their 2| individual capacities are dismissed with prejudice and without leave to amend. 3 IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action 4| enter final judgment accordingly. 5 Dated this 16th day of October, 2024. 6 7
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