Rosenbaum v. Bank of America NA

Opinion

1 WO 2 3 4 5

9 Levi Rosenbaum, No. CV-22-02072-PHX-JAT

10 Plaintiff, ORDER

11 v.

12 Bank of America, NA, Sedgwick Claims Management Services, and Metropolitan 13 Life Insurance Co.,

14 Defendants. 15 16 Pending before the Court is Defendants’ Motions to Dismiss (the “Motions”). 17 Plaintiff filed a Response to the Motions. Defendants filed a Reply. The Court now rules 18 on the Motions. 20 In May 2015, Bank of America (“BoA”) hired Levi Rosenbaum (“Plaintiff”). (Doc. 21 65 p. 3). Plaintiff started a leave of absence on March 15, 2021. (Doc. 65 p. 8). Shortly 22 thereafter, Plaintiff filed a claim for short-term disability benefits that was then denied by 23 BoA’s short-term disability claim administrator, Metropolitan Life Insurance Company 24 (“MetLife”). (Doc. 65 p. 9). On May 3, 2021, Sedgwick Claims Management Services, 25 Inc. (“Sedgwick”) replaced MetLife for the administration of short-term disability benefits 26 only. (Doc. 65 p. 9; Doc. 77 p. 4). MetLife remained the claim administrator for long-term 27 disability benefits. (Doc. 77 p. 4). Plaintiff appealed MetLife’s decision to deny his short- 28 term disability benefits claim to Sedgwick. (Doc. 65 p. 10). Plaintiff continued through the 1 appeals process until BoA told him that Sedgwick “upheld the denial” on the appeal “due 2 to no additional supporting documentation being received” and that the “next step would 3 be to file a civil suit against Sedgwick.” (Doc. 65 p. 10-12). On January 13, 2022, BoA 4 terminated Plaintiff. (Doc. 65 p. 12). 5 In June 2022, BoA closed Plaintiff’s financial accounts and filed a lawsuit against 6 Plaintiff for $30,000 in credit card debt. (Doc. 65 p. 13). On August 1, 2022, Plaintiff filed 7 a charge of discrimination with the Equal Employment Opportunity Commission 8 (“EEOC”). (Doc. 65 p. 12-13). On March 29, 2024, Social Security approved Plaintiff’s 9 disability status to March 9, 2021. (Doc. 65 p. 13). 10 On September 23, 2022, the EEOC issued a “Notice of Right to Sue” letter to 11 Plaintiff in connection to his August 1, 2022 charge. (Doc. 65 p. 12-13). On December 8, 12 2022, Plaintiff filed a complaint in the District Court. (Doc. 2). The complaint was 13 subsequently amended three times: on November 14, 2023; then on December 15, 2023; 14 and, most recently, on June 7, 2024. (Doc. 29, 33, 65). Plaintiff’s Third Amended 15 Complaint (“TAC”) is before the Court now. 17 Federal Rule of Civil Procedure 8(a) requires a complaint to contain, among other 18 things, “a short and plain statement of the claim showing that the pleader is entitled to 19 relief.” Fed. R. Civ. P. 8(a). A defendant can test if a plaintiff has met the requirements of 20 Rule 8(a) by filing a motion to dismiss for “failure to state a claim on which relief can be 21 granted” under Rule 12(b)(6). 22 To decide a 12(b)(6) motion, the Court generally focuses on what the plaintiff has 23 written in the complaint. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice 24 and Procedure § 1357 (3d ed. 2004 & Supp. 2022). This is because a Court usually cannot 25 consider anything outside the complaint without transforming the motion to dismiss into a 26 motion for summary judgment under Federal Rule of Civil Procedure 56. There are two 27 recognized exceptions, however, in which a court may consider evidence otherwise outside 28 of the complaint without converting the motion: (1) evidence that the court has judicially 1 noticed, and (2) evidence incorporated, either literally or by reference, into the plaintiff’s 2 complaint. Lee v. City of L.A., 250 F. 3d 668, 688–89 (9th Cir. 2001); see also Section 3 III.B, infra. 4 In deciding whether a complaint will survive a 12(b)(6) motion, the Court does not 5 need to accept a complaint’s legal conclusions, but it does accept as true all the complaint’s 6 factual allegations, i.e., the plaintiff’s factual description of what happened. Ashcroft v. 7 Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 8 (2007)). Additionally, the Court must interpret the complaint’s allegations “in the light 9 most favorable to the plaintiff.” Schwarz v. United States, 234 F.3d 428, 435 (9th Cir. 10 2000). However, “the court need not accept as true allegations that contradict facts which 11 may be judicially noticed.” Westlands Water Dist. v. U.S., Dept. of Interior, Bureau of 12 Reclamation, 805 F. Supp. 1503, 1506 (E.D. Cal. 1992) (citing Mullis v. U.S. Bankruptcy 13 Ct., 828 F. 2d 1385, 1388 (9th Cir. 1987)). The Court similarly is not required to accept as 14 true allegations that contradict documents that are incorporated into the complaint. See 15 Spinedex Physical Therapy USA, Inc. v. United Healthcare of Ariz., Inc., 661 F. Supp. 2d 16 1076, 1083 (D. Ariz. 2009). 17 A complaint will be dismissed for failure to state a claim if it lacks either “a 18 cognizable legal theory or . . . sufficient facts alleged under a cognizable legal theory.” 19 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). To allege sufficient 20 facts under a cognizable legal theory, a complaint must contain factual allegations from 21 which the court can reasonably conclude that the plaintiff is not just possibly entitled to 22 relief, but plausibly entitled to relief. See Iqbal, 556 U.S. at 678. 24 a. Plaintiff’s claims 1 through 7 against Defendant BoA 25 Plaintiff alleges Claims 1-7 against Defendant BoA. BoA, in part, argues that 26 Plaintiff’s claims are time-barred because they occurred over 300 days before Plaintiff filed 27 his charge with the EEOC on August 1, 2022. In response, Plaintiff argues that acts that 28 occurred prior to the cut-off date are timely because they are part of an “ongoing 1 harassment” claim. 2 “Title VII contains several distinct filing requirements which a claimant must 3 comply with in bringing a civil action.” Valenzuela v. Kraft, Inc., 801 F.2d 1170, 1172 (9th 4 Cir. 1986), as amended by 815 F.2d 570 (9th Cir. 1987). Before filing a civil suit under 5 Title VII, a plaintiff “must file a charge within the statutory time period and serve notice 6 upon the person against whom the charge is made.” Nat’l R.R. Passenger Corp. v. Morgan, 7 536 U.S. 101, 109 (2002) (citing 42 U.S.C. § 12117(a)). When a plaintiff files a charge 8 with the EEOC and a state or local agency, the plaintiff must file with the EEOC “within 9 three hundred days after the alleged unlawful employment practice occurred.” 42 U.S.C. § 10 2000e–5(e)(1) (2009). 11 In determining whether a plaintiff timely filed a case, courts have distinguished 12 between “discrete discriminatory acts” and acts contributing to a “hostile work 13 environment.” Morgan, 536 U.S. at 109. A discrete discriminatory act consists of conduct 14 that “occurred” on the day it “happened.” Id. at 110. Some “easy to identify” examples of 15 discrete acts are “termination, failure to promote, denial of transfer, [and] refusal to hire.” 16 Id. at 114. A plaintiff must file a charge within 300 days of the allegedly discriminatory 17 act. Id. at 110. If a plaintiff does not file within this time period, they lose the ability to 18 recover for that act. Id. 19 By contrast, a claim based on a “hostile work environment” “involves repeated 20 conduct” that “occurs over a series of days or . . . years.” Id. at 115. “In determining whether 21 an actionable hostile work environment claim exists, we look to ‘all the circumstances,’ 22 including ‘the frequency of the discriminatory conduct; its severity; whether it is physically 23 threatening or humiliating, or a mere offensive utterance; and whether it unreasonably 24 interferes with an employee’s work performance.’” Id. at 116. (citing Harris v. Forklift 25 Sys., Inc., 510 U.S. 17, 23 (1993)). Under a hostile work environment claim, a court may 26 review conduct that occurred outside the filing period if “an act contributing to the claim 27 occur[ed] within the filing period.” Id. at 117. 28 Here, Plaintiff filed his charge with the EEOC on August 1, 2022. Any conduct that 1 occurred over 300 days prior, or before October 5, 2021, is time-barred, unless Plaintiff 2 has a claim based on a “hostile work environment.”1 Plaintiff’s TAC does not expressly 3 describe the workplace as a “hostile environment.” Plaintiff does, however, cite the EEOC 4 website in arguing that the Court should consider incidents preceding October 5, 2021, 5 based on a theory of “ongoing harassment.” The EEOC uses the term “ongoing 6 harassment”2 to refer to the idea that when a plaintiff files their charge “within . . . 300 7 days of the last incident of harassment,” all incidents of harassment will be considered, 8 “even if the earlier incidents happened more than 180/300 days earlier.” U.S. Equal 9 Employment Opportunity Commission, Time Limits For Filing A Charge, 10 https://perma.cc/3ARZ-6H7W. 11 Under his theory of “ongoing harassment,” Plaintiff specifically asks the Court to 12 “consider all the earlier incidents” based on “the most recent incidents of 1) wrongful 13 termination and 2) discrimination based on disability that occurred right before the forced 14 leave.” (Doc. 78 p. 2). First, the allegedly “wrongful termination” occurred within 300 days 15 of August 1, 2022: Plaintiff was terminated on January 13, 2022. The question becomes 16 whether this termination was “an incident of harassment.” 17 Federal law prohibits harassment based on race, color, religion, sex, national origin, 18 disability, genetic information, and age (40 or over). 42 U.S.C. § 2000e-5 (Title VII); 29 19

20 1 Contrary to Plaintiff’s beliefs, BoA’s alleged ignorance of his complaints does not “push” 21 the statute of limitations “further.” (Doc. 65 p. 12) Nor is the time period extended by Plaintiff’s assertion that “300 days is less statistically significant” or by the EEOC “being 22 very busy.” (Doc. 78 pp. 2, 4). 23 2 At one time, the Ninth Circuit used the doctrine of “continuing violations” to refer to the same idea: “events occurring outside the limitations period may be considered as a basis 24 for the claim so long as those events are part of an ongoing unlawful employment practice.” Draper v. Coeur Rochester, 147 F.3d 1104, 1107-08 (9th Cir. 1998). However, after the 25 landmark Supreme Court case National Railroad Passenger Corp. v. Morgan, 536 U.S. 26 101, (2002), “little remains of the continuing violations doctrine . . . [e]xcept for a limited exception for hostile work environment claims.” Bird v. Dep’t of Hum. Servs., 935 F.3d 27 738, 748 (9th Cir. 2019); see also Cherosky v. Henderson, 330 F.3d 1243, 1246 (9th Cir. 28 2003) (“In Morgan, however, the Supreme Court substantially limited the notion of continuing violations.”). 1 U.S.C. § 626 (Age Discrimination in Employment Act (ADEA)); 42 U.S.C. § 12117(a) 2 (Americans with Disabilities Act (ADA)); 42 U.S.C. § 2000ff-6(a) (Genetic Information 3 Nondiscrimination Act (GINA)). Plaintiff has not pled sufficient facts to establish that his 4 termination was an incident of harassment. He pled no facts showing any sort of causal 5 link between his termination and a protected class listed above. Because Plaintiff has not 6 pled sufficient facts to show that his termination was an “incident of harassment,” the 7 termination cannot be the basis of “ongoing harassment.” 8 Second, the alleged “discrimination based on disability that occurred right before 9 the forced leave” by definition occurred prior to March 15, 2021 (the date Plaintiff went 10 on leave). This is therefore time-barred and also cannot form the basis of “ongoing 11 harassment.” Because Plaintiff has not pled sufficient facts to establish “ongoing 12 harassment,” the Court will not, on the basis of this theory, consider incidents that precede 13 October 5, 2021. However, in “continu[ing] to construe pro se filings liberally,” this Court 14 will analyze Plaintiff’s claims and consider whether Plaintiff has sufficiently alleged any 15 other claims, including whether Plaintiff alleged conduct during the time period that 16 contributed to a hostile work environment. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 17 2010). The claims are considered in turn below. 18 i. Claim 1: Retaliation (termination) 19 Plaintiff’s first claim alleges that BoA terminated him in retaliation for his 20 “complaints of discrimination, unfair hiring and promotion practices, and disability” in 21 violation of the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights 22 Act of 1964 (Title VII). 23 1. Timeliness 24 BoA terminated Plaintiff on January 13, 2022. The termination is not time-barred. 25 However, most of the facts Plaintiff cites in support of this claim are time-barred because 26 they occurred prior to October 5, 2021, with most events occurring before Plaintiff went 27 on leave on March 15, 2021. Although Plaintiff argues that the termination itself is the 28 culmination of “ongoing harassment” and therefore the basis for the Court considering 1 events outside the statute of limitations, as discussed above, he has not pled sufficient facts 2 to show that the termination was itself an “incident of harassment.” See supra Section III.a. 3 Additionally, the termination cannot be the basis of a hostile work environment claim 4 because termination is an “easy to identify” example of a discrete act and “hostile 5 environment claims are different in kind from discrete acts [because] [t]heir very nature 6 involves repeated conduct.” Morgan, 536 U.S. at 114-15. Because the termination itself 7 occurred within the timely period, the Court will consider whether Plaintiff alleged 8 sufficient facts to state a claim. 9 2. Merits 10 To sufficiently plead a claim of retaliation, a plaintiff must show that (1) they 11 engaged in a protected activity; (2) they suffered an adverse employment action; and (3) 12 there was a causal link between their protected activity and the adverse employment action. 13 Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir. 2003). In the 14 retaliation context, an adverse employment action is an action that is “reasonably likely to 15 deter employees from engaging in protected activity.” Vasquez v. Cnty. of Los Angeles, 349 16 F.3d 634, 646 (9th Cir. 2003), as amended (Jan. 2, 2004). The causation element requires 17 proof of a causal link between a protected activity and the employer’s action. Univ. of Tex. 18 Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). 19 Here, even assuming that Plaintiff has sufficiently pled facts to meet the first two 20 elements, he has not pled facts that show a causal link between the protected activity and 21 his termination. In other words, he has not shown that he was terminated because of his 22 “complaints of discrimination, unfair hiring and promotion practices, and disability.” In 23 fact, Plaintiff provides an explanation for his termination, writing that BoA stated he “was 24 on unapproved leave and fired him.” (Doc. 65 p. 10). 25 Although the Court may generally grant leave to amend, sua sponte, when 26 dismissing a complaint under Rule 12(b)(6), this Court will not grant leave to amend here 27 because further amendment would be futile. See Bonin v. Calderon, 59 F.3d 815, 845 28 (1995) (finding futility alone justifies denying leave to amend). The Court finds that 1 amendment would be futile for the following reasons: (1) Plaintiff has already had three 2 chances to amend his complaint; (2) each complaint has had the benefit of being 3 adversarially tested; (3) Plaintiff has declined to meet and confer with Defendants (Doc. 4 73 p. 3-4); and (4) Plaintiff has not alleged any new facts with each amended complaint. 5 Given that Plaintiff is still unable to state a cognizable legal claim, the Court has no reason 6 to believe a fourth amended complaint would yield a different result. 7 ii. Claim 2: Retaliation (other acts) 8 Plaintiff’s second claim alleges that BoA retaliated against Plaintiff for his 9 “complaints of discrimination, unfair hiring and promotion practices, and disability” by (1) 10 removing disability accommodation breaks, (2) forcing leave and not paying compensation 11 during leave, (3) denying benefits, and (4) “closure of financial accounts.” 12 1. Timeliness 13 As discussed above, by law, the Court may only consider acts that occurred after 14 October 5, 2021. The following events are therefore time-barred:

15 • On January 8, 2021, Plaintiff went to his manager with “concerns of 16 violations of unfair hiring and promotion practices and ongoing discrimination.” (Doc. 65 p. 7). 17 • Plaintiff’s disability accommodation breaks were removed “within a few 18 weeks after Plaintiff’s upper management complaint meeting” (which occurred on January 15, 2021). (Doc. 65 p. 7-8). 19 • Plaintiff alleges that the removal of disability breaks caused him 20 “humiliation” and “forced” him to go on leave on March 15, 2021. (Doc. 65 p. 8). 21 Even if these incidents together could show a “pattern” of conduct, they are all time-barred. 22 Therefore, these incidents cannot form the basis of an “ongoing harassment” or a “hostile 23 work environment” claim. 24 Plaintiff also argues that Defendant retaliated by denying him compensation and 25 benefits during his leave. Plaintiff started his leave on March 15, 2021, and it appears that 26 Plaintiff was immediately without pay or benefits. (Doc. 65 p. 8-9) This, too, is time-barred. 27 Plaintiff may have intended to argue that the Court should consider the leave without pay 28 or benefits as timely because it was part of “ongoing harassment” or a “hostile work 1 environment” that lasted until he was terminated in January 2022. However, this is not 2 legally plausible. 3 The “[m]ere continuity of employment [or leave], without more, is insufficient to 4 prolong the life of a cause of action for employment discrimination.” Delaware State 5 College v. Ricks, 449 U.S. 250, 257 (1980) (finding no continuing violation between 6 decision to deny tenure and actual termination). Similarly, “an employer’s rejection of an 7 employee’s proposed accommodation . . . does not give rise to a continuing violation.” 8 Cherosky v. Henderson, 330 F.3d 1243, 1248 (9th Cir. 2003) (quoting Elmenayer v. ABF 9 Freight Sys., Inc., 318 F.3d 130, 134-35 (2d Cir. 2003)). Because the mere continuity of 10 Plaintiff’s leave without pay or benefits is insufficient to prolong the life of a cause of 11 action, without more, the Court cannot find an ongoing violation between Plaintiff going 12 on leave and Plaintiff’s termination. BoA’s rejection of Plaintiff’s requests for pay and 13 benefits does not give rise to either “ongoing harassment” or a “hostile work environment.” 14 Finally, Plaintiff claims BoA retaliated against Plaintiff by closing Plaintiff’s 15 financial accounts in June 2022. Plaintiff notes that he had $30,000 in credit card debt. This 16 is not time-barred and will be discussed below. 17 2. Merits 18 While not time-barred, Plaintiff did not fulfill the required administrative exhaustion 19 charge for this claim. “Allegations . . . not included in the plaintiff’s administrative charge 20 may not be considered by a federal court unless the new claims are like or reasonably 21 related to the allegations contained in the EEOC charge.” B.K.B. v. Maui Police Dep’t, 276 22 F.3d 1091, 1100 (9th Cir. 2002), as amended (Feb. 20, 2002) (internal quotations omitted). 23 In determining whether an allegation or claim is “like or reasonably related” to allegations 24 in the EEOC charge, courts “consider such factors as the alleged basis of the discrimination, 25 dates of discriminatory acts specified within the charge, perpetrators of discrimination 26 named in the charge, and any locations at which discrimination is alleged to have 27 occurred.” Id. 28 1 Here, Plaintiff did not include the specific allegation that BoA sued him “in 2 retaliation” in his EEOC charge.3 (Doc. 1 15-16). Plaintiff did write that he was “retaliated 3 against for requesting an accommodation,” but did not elaborate further. Plaintiff also 4 indicated that the “latest” date discrimination(s) took place was January 13, 2022 (the day 5 Plaintiff was terminated). BoA sued Plaintiff in June 2022. Plaintiff did not include any 6 other language suggesting discrimination continued after termination. A reasonable EEOC 7 investigation of this charge would not have expanded beyond the date Plaintiff listed (or 8 beyond the date of Plaintiff’s termination). Thus, the Court finds that Plaintiff failed to 9 exhaust his administrative remedies as required.4 10 Alternatively, Plaintiff did not plead facts sufficient to establish the elements of 11 retaliation. To establish a case of retaliation, a plaintiff must show that (1) they engaged in 12 a protected activity; (2) they suffered an adverse employment action; and (3) there was a 13 causal link between their protected activity and the adverse employment action. Raad v. 14 Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir. 2003). In the 15 retaliation context, an adverse employment action is an action that is “reasonably likely to 16 deter employees from engaging in protected activity.” Vasquez v. Cnty. of Los Angeles, 349 17 F.3d 634, 646 (9th Cir. 2003), as amended (Jan. 2, 2004). The causation element requires 18 proof of a causal link between a protected activity and the employer’s action. Univ. of Tex. 19 Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). 20 Here, there is no “adverse employment action” alleged. BoA closed Plaintiff’s 21 financial accounts after Plaintiff was already on leave and after he was terminated. A 22 23 3 Plaintiff attached a copy of his EEOC charge to his original complaint. After amendment, the Court treats the original complaint as nonexistent. Ferdik v. Bonzelet, 963 F.2d 1258, 24 1262 (9th Cir. 1992). However, Plaintiff did not attach a copy of the charge to the TAC. Moreover, the parties do not dispute that the EEOC charge attached to the original 25 complaint is a true and correct copy. Thus, even though Plaintiff did not technically attach 26 the charge to his TAC, the Court will consider it by deeming it to be incorporated by reference into the TAC. 27 4 And, as Defendants point out, “if he [Plaintiff] filed an EEOC charge on [this claim] now, 28 that charge would, itself, be untimely, since the alleged acts occurred more than 300 days ago, and indeed more than two years ago.” (Doc. 76 p. 5). 1 lawsuit for $30,000 of credit card debt after the end of an employee’s tenure is not 2 “reasonably likely to deter employees from engaging in protected activity.” Even if it was 3 “adverse employment action,” Plaintiff failed to show a causal link. He has not alleged that 4 BoA sued for his credit card debt because of his complaints. He did not “link” his 5 complaints to BoA’s action. After reviewing this cause of action, the Court concludes that 6 Plaintiff did not exhaust his administrative remedies as required for the claim and, in the 7 alternative, Plaintiff did not allege sufficient facts to state a claim for retaliation. The Court 8 will not grant leave to amend because further amendment of this theory of retaliation would 9 be futile for the reasons discussed above (see supra Section III.a(i)(2)) and, alternatively, 10 it would be futile because Plaintiff cannot cure the lack of exhaustion. 11 iii. Claim 3: Discrimination (disability) 12 Plaintiff’s third claim alleges “Discrimination based on Disability.” 13 1. Timeliness 14 Somewhere between 2019 and 2022, “Plaintiff began managerial disability 15 accommodations,” including access to the health room. (Doc. 65 p. 5). Plaintiff says he 16 was diagnosed with Parkinson’s disease. (Doc. 65 p. 5). The “managerial disability 17 accommodations” were allegedly removed around January 2021, which caused Plaintiff to 18 feel “humiliated” and “forced him to go on leave” in March 2021. (Doc. 65 p. 8). Plaintiff 19 alleges that BoA “did not assist him at his request for alleviating his disability by removing 20 him from client facing roles.” (Doc. 65 p. 7). Plaintiff also alleges two specific incidents: 21 the first in 2019 when a manager “screamed at him to come back [from the restroom] to 22 take calls,” the second in 2020 when an individual forced him to stay late, instant messaged 23 him past his scheduled work time, and made him late to pick up his children from school. 24 (Doc. 65 p. 5-7). 25 All these allegations occurred while Plaintiff was still working, prior to when he 26 began his leave of absence in March 2021. In other words, all of these allegations took 27 place before October 5, 2021, and all are time-barred. The Court will consider the 28 remaining paragraphs listed in support of this claim. 1 2. Merits 2 The ADA makes it unlawful to “discriminate against a qualified individual with a 3 disability because of the disability of such individual in regard to . . . terms, conditions, and 4 privileges of employment.” 42 U.S.C. § 12112(a). To plead discrimination under the ADA, 5 a plaintiff must demonstrate that they: (1) are a qualified individual with a disability; (2) 6 can perform the essential functions of their job; and (3) suffered an adverse employment 7 action because of, or “but for,”5 their disability. Kennedy v. Applause, Inc., 90 F .3d 1477, 8 1481 (9th Cir. 1996); see also Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th 9 Cir. 1999). “An adverse employment action is one that materially alters the ‘terms and 10 conditions’ of the plaintiff’s employment.” Mamola v. Group Mfg. Servs., No. CV-08-1687- 11 PHX-GMS, 2010 WL 1433491, at *6 (D. Ariz. Apr. 9, 2010) (citing Kang v. U. Lim. Am., 12 Inc., 296 F.3d 810, 819 (9th Cir. 2002)). 13 Plaintiff has sufficiently pled facts to meet the first two elements. Plaintiff alleges 14 that he “began managerial disability accommodations,” including receiving access to the 15 health room in “2019-2022.” (Doc. 65 p. 5). In “2021-2022” Plaintiff alleges his 16 “symptoms of speech difficulty, anxiety and digestion problems” were such that he 17 required breaks. (Doc. 65 p. 5). Plaintiff then says “Parkinson[’]s disease was eventually 18 diagnosed.” (Doc. 65 p. 5). Plaintiff also alleges that on March 29, 2024, “Social Security 19 Disability formally approved [his] disability status to March 9 2021.” (Doc. 65 p. 13). 20 The question becomes whether Plaintiff has alleged sufficient facts to meet the third 21 element. Plaintiff presents two adverse employment actions: the failure to promote and 22 termination. However, any failure to promote happened prior to Plaintiff going on leave 23 and is therefore time-barred. Regarding termination, Plaintiff fails to allege facts that show 24 he “suffered” termination because of (or “but for”) his disability. In fact, Plaintiff provides 25 26 5 Here, “because of” is read to require “but for” rather than “proximate” causation. See 27 UMG Recordings, Inc. v. Shalter Capital Partners LLC, 718 F.3d 1006, 1017 n. 7 (9th Cir. 28 2013) (citing New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 301 n. 4 (3d Cir. 2007). 1 an explanation for his termination, writing that BoA stated he “was on unapproved leave 2 and fired him.” (Doc. 65 p. 10). 3 In conclusion, after reviewing this cause of action, the Court concludes that the facts 4 alleged are insufficient to state a claim for discrimination under the ADA. The Court will 5 not grant leave to amend because further amendment of this theory of discrimination would 6 be futile for the reasons discussed above. See supra Section III.a(i)(2). 7 iv. Claim 4: Discrimination (religion) 8 Plaintiff’s fourth cause of action alleges “Discrimination based on Religion.” 9 1. Timeliness 10 Plaintiff alleges he “was discriminated based on religion on several occasions” 11 between 2019 and 2022. (Doc. 65 p. 3, 6). Generally, Plaintiff alleges that BoA “only gave 12 mobility to certain . . . religions.” (Doc. 65 p. 4). Specifically, Plaintiff details an incident 13 in which he asked his manager why he was not promoted and asked for help to be promoted. 14 (Doc. 65 p. 6). Plaintiff’s manager allegedly responded “saying that she knew of plaintiff’s 15 religion and disagrees strongly with it and that they do not see eye to eye.” (Doc. 65 p. 6). 16 The manager “stated this for several months.” (Doc. 65 p. 6). Plaintiff then alleges that 17 BoA “management team made it clear he religiously did not fit in” and that was why he 18 was not promoted. (Doc. 65 p. 6). Management “continued to deny him promotion for the 19 duration of his career” and upper management “supported the discrimination.” (Doc. 65 p. 20 4). Plaintiff also describes another incident from 2020 where an individual allegedly forced 21 Plaintiff to stay late, instant messaged him past his scheduled work time, and made him 22 late to pick up his kids from school. (Doc. 65 p. 7). 23 Each of these alleged incidents occurred prior to Plaintiff going on leave. The 24 timing is undisputed and all acts occurred prior to October 5, 2021. After reviewing this 25 cause of action, the Court concludes that the facts alleged are time-barred and therefore 26 insufficient to state a claim for discrimination based on religion. The Court will not grant 27 leave to amend because further amendment of this theory of discrimination would be futile 28 1 for the reasons discussed above (see supra Section III.a(i)(2)) and, alternatively, it would 2 be futile because of the time bar. 3 v. Claim 5: Discrimination (age, gender) 4 Plaintiff’s fifth cause of action alleges “Discrimination based on age and gender.” 5 1. Timeliness 6 The incidents that Plaintiff alleges in support of this claim include the following:

7 • Plaintiff found that job mobility claims “only rang true for . . . women and 8 younger generations” but not for “plaintiff in disfavored classes of being too old over 40, religious beliefs, and male;” the BoA’s hiring webpage “emphasize(s) 9 woman management” and “show[s] women hiring a woman over another man 10 and favoring women in promotions, selection, and job progression;” management provided job mobility only “to their favored classes” (Doc. 65 p. 11 3). 12 • Female colleagues “stated that when hiring comes down to two candidate’s male and female the practice by [BoA] is to promote the female;” a female colleague 13 told Plaintiff that in his division, BoA “hired and promoted based on diversity 14 requirements which focused more on women;” BoA “only gave mobility to certain genders and ages” (Doc. 65 p. 3-4). 15 • A female colleague got a promotion over Plaintiff “who had all the required 16 securities licenses needed while she had none;” Plaintiff trained a female colleague who “was then promoted over plaintiff” (Doc. 65 p. 4). 17 • “Plaintiff notified management of unfair hiring and promotion practiced by 18 managers;” “Plaintiff complained of this unequal treatment of being male over 40 denied promotions;” “Senior managers discussed often diversity equity 19 inclusion (DEI) honored groups and continually acted on those discussions by 20 hiring younger DEI approved new employees” (Doc. 65 p. 4-5). • Plaintiff attempted to seek a managerial mentor but received no response; “from 21 2016 – 2020 Plaintiff sought a QA role under a specific manager and interviewed 22 3 times but was passed up by younger females promoted instead” (Doc. 65 p. 5). • Plaintiff met with management to discuss complaints of discrimination (Doc. 65 23 p. 7-8). 24 The Court understands that Plaintiff is alleging age and gender discrimination over 25 a period of time. However, the period of time detailed above is entirely time-barred; each 26 of these events took place prior to when Plaintiff went on leave. Although, as discussed 27 above, acts occurring outside the 300-day window may be permitted if they are part of an 28 “ongoing harassment” or “hostile work environment” claim, the Plaintiff is still required 1 to have submitted his charge within 300 days of conduct that is part of an ongoing pattern 2 of discrimination in order for earlier incidents to be considered. None of the above incidents 3 of alleged discrimination took place within 300 days of when Plaintiff filed his charge. 4 Plaintiff does not allege any age or gender discrimination after October 5, 2021. Moreover, 5 a “failure to promote” is an “easy to identify” discrete discriminatory act that cannot form 6 the basis of an ongoing “hostile environment” claim. 7 The timing is undisputed and all acts occurred prior to Plaintiff’s leave-of-absence. 8 After reviewing this cause of action, the Court concludes that the facts alleged are 9 insufficient to state a claim for discrimination on the basis of age or gender. The Court will 10 not grant leave to amend because further amendment of this theory of discrimination would 11 be futile for the reasons discussed above (see supra Section III.a(i)(2)) and, alternatively, 12 it would be futile because all of these acts are time barred. 13 vi. Claim 6: Unfair hiring and promotion practices 14 Plaintiff’s sixth cause of action alleges “Unfair hiring and promotion practices based 15 on age, disability, gender, and religious discrimination.” The Court has already described 16 why Plaintiff’s claims for discrimination based on age, disability, gender, and religion are 17 insufficient. The only difference in this claim appears to be that Plaintiff narrows in on the 18 adverse employment action of “unfair hiring and promotion practices.” However, any 19 allegedly unfair hiring or promotion practice must have occurred prior to Plaintiff going 20 on leave in March 2021 and is therefore time-barred. Moreover, a “failure to promote” is 21 an “easy to identify” discrete discriminatory act that cannot form the basis of a “hostile 22 work environment” claim. 23 After reviewing this cause of action, the Court concludes that the facts alleged are 24 insufficient to state a claim. The Court will not grant leave to amend because further 25 amendment of this theory would be futile for the reasons discussed above (see supra 26 Section III.a(i)(2)) and, alternatively, it would be futile because of the time bar. 27 28 1 vii. Claim 7: Employment term violations 2 Plaintiff’s seventh6 cause of action alleges “Employment term violations, hiring 3 website specifically advertises stating great place to work with hiring and promoting with 4 job mobility which job mobility they denied plaintiff 6 years.” Plaintiff alleges the BoA 5 website “advertised job mobility (movement within company)” but such job mobility in 6 practice was only for “favored certain classes.” (P. 2). 7 This claim lacks a cognizable legal theory. Website content, by itself, does not form 8 a contract, or a term of a contract. See, e.g., Doe v. Regents of Univ. of California, 672 F. 9 Supp. 3d 813, 821 (N.D. Cal. 2023) (finding documents available on a public website were 10 insufficient to form an express contract). To establish a contract via a website, a user must 11 show that contractual terms were presented “in a manner that made it apparent the [user] 12 was assenting to those very terms when checking a box or clicking a button.” Sellers v. 13 JustAnswer LLC, 73 Cal. App. 5th 444, 461 (2021). 14 Similarly, online advertising does not establish an offer to enter a contract. Roley v. 15 Google LLC, 40 F.4th 903, 909 (9th Cir. 2022) (finding “[a]dvertisements are not typically 16 understood as offers” in the context of online advertising). Rather, “advertisements are 17 understood to be mere requests to consider and examine and negotiate; and no one can 18 reasonably regard them as otherwise unless the circumstances are exceptional and the 19 words used are very plain and clear.” Leonard v. Pepsico, Inc., 88 F. Supp. 2d 116, 123 20 (S.D.N.Y. 1999) (emphasis added). 21 Here, Plaintiff has not pled facts that suggest that the “job mobility” on the website 22 was anything more than website content. He does not say he assented to any sort of 23 contractual terms regarding job mobility via the website. He also describes BoA’s website 24 as “advertis[ing] job mobility.” Online advertisement of job mobility, without exceptional 25 circumstances, does not establish an offer to enter into an employment contract that 26 includes the advertised job mobility as a term of the contract. 27 28 6 Plaintiff misnumbered two claims as “Claim 7.” This section refers to the first Claim 7. 1 After reviewing this cause of action, the Court concludes that the facts alleged are 2 insufficient to state a claim. Alternatively, even if this claim had a cognizable legal theory, 3 it is time-barred: Plaintiff was hired in May 2015 and went on leave in March 2021. Any 4 claim regarding hiring, job mobility, or promotion must have occurred prior to Plaintiff 5 going on a leave of absence. The Court will not grant leave to amend because further 6 amendment of this theory would be futile for the reasons discussed above (see supra 7 Section III.a(i)(2)) and, alternatively, it would be futile because this is not a cognizable 8 legal theory and the acts are time barred. 9 b. Plaintiff’s Claims 7-12 against Defendants MetLife and Sedgwick 10 Plaintiff alleges three claims against Defendant MetLife: Claim 77 (“Negligence and 11 Omission”), Claim 8 (“Wrongful denial of leave benefits short and long-term), and Claim 12 9 (“Failure to consider evidence of limitations claimant submitted”). He also alleges three 13 claims against Defendant Sedgwick: Claim 10 (“Negligence and Omission”), Claim 11 14 (“Failure to consider evidence of limitations claimant submitted”), and Claim 12 15 (“Improper denial of benefits under the Employee Retirement Income Security Act of 16 1974”). 17 As discussed above, a Court usually cannot consider anything outside the complaint 18 without transforming the motion to dismiss into a motion for summary judgment under 19 Federal Rule of Civil Procedure 56. There are two recognized exceptions, however, in 20 which a court may consider evidence otherwise outside of the complaint without 21 converting the motion: (1) evidence that the court has judicially noticed, and (2) evidence 22 incorporated, either literally or by reference, into the plaintiff’s complaint. Lee v. City of 23 L.A., 250 F.3d 668, 688-89 (9th Cir. 2001). 24 Here, Plaintiff’s complaint repeatedly references the specifics of his benefit plans. 25 In doing so, he incorporated by reference the disability benefit plan documents attached to 26 the Defendants’ response. Thus, the Court will consider the Summary Plan Description 27

28 7 Plaintiff misnumbered two claims as “Claim 7.” This section refers to the second Claim 7. 1 (“SPD”) and the Summary of Material Modifications (“SMM”) in analyzing these claims. 2 i. ERISA Applicability 3 Plaintiff generally invokes the Employee Retirement Income Security Act of 1974 4 (“ERISA”) as support for some claims and specifically invokes ERISA in claiming 5 Sedgwick violated ERISA when it denied him short-term disability benefits. Defendants 6 concede that ERISA governs BoA’s long-term disability benefits plan. (Doc. 77 p. 10). 7 Thus, the issue before the Court is whether ERISA covers BoA’s short-term disability 8 benefit plans. 9 To determine whether a benefit plan is an ERISA plan, a court must first consider 10 whether the plan fits the definition of an “employee welfare benefit plan.” An “employee 11 welfare benefit plan” is:

12 [A]ny plan, fund, or program . . . established or maintained by an employer or by an 13 employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or 14 their beneficiaries, through the purchase of insurance or otherwise, . . . benefits in 15 the event of . . . sickness, accident, [or] disability . . .

16 29 U.S.C. § 1002(1). However, there is a regulatory exemption that exempts certain 17 “payroll practices” from ERISA-coverage. Under the exemption, “employee welfare 18 benefit plans” do not include “[p]ayment of an employee’s normal compensation, out of 19 the employer’s general assets, on account of periods of time during which the employee is 20 physically or mentally unable to perform his or her duties, or is otherwise absent for 21 medical reasons . . .” 29 C.F.R. § 2510.3–1(b)(2) (emphasis added). Courts focus on “the 22 actual methods of payment” and the source from which the benefits are paid in determining 23 whether something qualifies as a “payroll practice.” Alaska Airlines, Inc. v. Oregon Bureau 24 of Lab., 122 F.3d 812, 814 (9th Cir. 1997). 25 In Behjou v. Bank of Am. Grp. Benefits Program, the court found that “short-term 26 disability benefits paid by Bank of America contain[ed] the requisite indicia of ‘normal 27 compensation’” in the following scenario: 28 1 The Plan documents state[d] that ‘STD replaces income’ based on the employee’s base pay, or a specific formula if the employee is paid on a commission basis. . . . 2 Disability payments [were] made ‘through the regular payroll process’ with 3 deductions taken for tax withholding, insurance coverage, 401(k) contributions, and [were] considered taxable income . . . Benefits terminate[d] after twenty-six weeks 4 or, inter alia, ‘when employment ends.’ 5 6 No. C 10-03982 SBA, 2012 WL 1534931, at *3 (N.D. Cal. May 1, 2012). That court went 7 on to find that “uncontroverted evidence show[ed] that the payment of short-term disability 8 benefits [was] made from Bank of America’s general assets” and concluded that the 9 payment was a “payroll practice” exempted under ERISA. 10 Here, Defendants MetLife and Sedgwick argue that the payment of short-term 11 disability benefits is a “payroll practice” because it is “normal compensation.” The Court 12 agrees. The short-term disability benefits plan here is nearly identical to that in Behjou. 13 The SMM states that “[short-term disability] benefits replace income” based on the 14 employee’s “weekly base pay.” (Doc. 77-2 p. 4, 6). Disability payments are subject to 15 deductions for insurance coverage, 401(k) contributions, and tax withholdings and 16 garnishments. (Doc. 77-2 p. 6). The benefits “are considered taxable income” and they 17 terminate after twenty-six weeks or “when employment ends.” (Doc. 77-2 p. 6). Finally, 18 the payment of short-term disability benefits is from BoA’s “general assets” 19 (“Contributions and funding . . . [n]ot insured; company pays cost”). (Doc. 77-1 p. 20). 20 It is true that the SPD says that the Group Benefits Program “is subject to applicable 21 limitations and restrictions under . . . ERISA.” (Doc. 77-1 p. 4). However, as described 22 above, there is no “applicable” limitation or restriction for BoA’s short-term disability plan 23 because it is an exempt “payroll practice.” See also Alaska Airlines, Inc., 122 F.3d at 813- 24 14 (finding employer characterization of plan as falling under ERISA not controlling); 25 Jamison v. Life Ins. Co. of N. Am., No. 3:21-CV-00039-YY, 2022 WL 1913778 (D. Or. 26 May 4, 2022), report and recommendation adopted, No. 3:21-CV-00039-YY, 2022 WL 27 1910260 *6 (D. Or. June 2, 2022) (finding not dispositive “plan documents describing 28 short-term disability plan as subject to ERISA”). 1 The Court finds that Plaintiff has not established that ERISA covers BoA’s short- 2 term disability benefit plan. As such, Claim 12 for “improper denial of benefits” under 3 ERISA is dismissed and claims 8, 9, and 11, are also dismissed to the extent they are claims 4 under ERISA for short-term disability benefits. 5 ii. ERISA Preemption 6 Defendants argue that some of Plaintiff’s claims are preempted by ERISA. As 7 established above, ERISA does not apply to BoA’s short-term disability plan but does 8 apply to BoA’s long-term disability plan. The issue is whether any of Plaintiff’s claims 9 regarding long-term disability are preempted under ERISA. 10 ERISA derives its preemptive power from two components. Blue Cross of Cal. v. 11 Insys Therapeutics, 390 F. Supp. 3d 996, 1003 (D. Ariz. 2019). The first component, 12 ERISA section 514(a), preempts all state laws “as they may now or hereafter relate to any 13 employee benefit plan.” 29 U.S.C. § 1444 (a). The second component, ERISA section 14 502(a), outlines the scope of civil remedies available to enforce any part of ERISA’s 15 provisions. Id. (citing Cleghorn v. Blue Shield of Cal., 408 F.3d 1222, 1225 (9th Cir. 2005). 16 If a state cause of action falls within this scope, the Court deems the cause of action 17 preempted as conflicting with the intended exclusivity of ERISA’s civil remedies. Id. This 18 is the case even if the state cause of action is not preempted by section 514(a). Id. 19 The Supreme Court has determined that state common law causes of action, 20 including breach of contract and tort, “relate to” an employee benefit plan and therefore 21 fall under ERISA’s express preemption clause, section 514(a). See Pilot Life Ins. Co. v. 22 Dedeaux, 481 U.S. 41, 43, 53 (1987) (“The common law causes of action raised in 23 Dedeaux’s complaint [including contract and tort actions], each based on alleged improper 24 processing of a claim for benefits under an employee benefit plan, undoubtedly meet the 25 criteria for pre-emption under § 514(a).”). Courts in this district and the state of Arizona 26 have followed this precedent. See, e.g., Schaum v. Honeywell Retiree Med. Plan No 507, 27 No. CV-04-2290-PHX-MHM, 2006 WL 2496435, *20 (D. Ariz. Mar. 31, 2006) (finding 28 medical provider’s claims, including breach of contract, preempted under ERISA); Satterly 1 v. Life Care Centers of America, Inc., 204 Ariz. 174, 178 (Ariz. Ct. App. 2003) (“[W]here 2 a common law breach of contract claim arises from the administration of an ERISA plan, 3 it is preempted”); Russell v. CVS Rx Servs. Inc., No. CV-16-00284-PHX-PGR, 2016 WL 4 9343117 *2 (D. Ariz. May 16, 2016) (finding state law claim for negligence relating to 5 administration of an ERISA plan “accordingly preempted”). 6 MetLife and Sedgwick contend that Plaintiff’s claims for negligence and breach of 7 contract for long-term disability benefits are preempted by ERISA. Based on the extensive 8 case law finding the same, the Court agrees. Because Plaintiff’s claims for negligence and 9 breach of contract are preempted, the Court will analyze whether Plaintiff has sufficiently 10 stated a cause of action under ERISA itself (rather than under state tort and contract law). 11 iii. Claims for “Negligence and Omission” 12 1. Against MetLife (Claim 7) 13 i. Short-Term Disability Benefits 14 ERISA does not cover the short-term disability benefits plan and Plaintiff’s 15 negligence claim is not preempted. To sufficiently plead a case of negligence, a “[p]laintiff 16 must show the existence of a duty, breach of that duty, causation, and damages.” Cloud v. 17 Pfizer Inc., 198 F. Supp. 2d 1118, 1138 (D. Ariz. 2001). “[W]hether a duty exists[] is a 18 matter of law for the court to decide.” Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007). 19 “[A]bsent some duty, an action for negligence cannot be maintained.” Id. In deciding 20 whether a duty exists, courts consider the relationship between the parties and public 21 policy. Id. at 231. A duty may exist if there is a “special relationship[] based on contract, 22 family relations, or conduct undertaken by the defendant.” Id. at 232. Generally, 23 administration of an employer-paid short-term disability benefit plan does not create a duty. 24 See generally Wilkes v. Electronic Data Sys. Corp., No. 04-341 TUC JMR, 2006 US Dis 25 Lexis 11839, 2006 WL 753161 (finding no contract existed between Plaintiff and MetLife 26 where MetLife was third party administrator for employer). 27 MetLife did not owe Plaintiff a duty of care. While Plaintiff claims that MetLife 28 “owed a duty of care to assist plaintiff to receive paid benefits,” the Court finds no special 1 relationship between the parties and no public policy in support of a duty. MetLife is the 2 claims administrator of the short-term disability plan funded by BoA. (Doc. 77-2 p. 4). 3 Plaintiff did not have a contractual relationship with MetLife; rather, MetLife had a 4 contractual relationship with BoA for the administration of benefits. The SPD explicitly 5 states that “[t]he provisions of [the] summary do not establish enforceable employee rights, 6 contractual or otherwise.” (Doc. 77-1 p. 4) (emphasis added). 7 In conclusion, Plaintiff has not pled sufficient facts to meet the elements of 8 negligence. 9 ii. Long-Term Disability Benefits 10 Having established that Plaintiff’s long-term disability benefits are covered by 11 ERISA, and that Plaintiff’s negligence claim is preempted, Plaintiff can only state a cause 12 of action for long-term disability under ERISA. To claim a denial of benefits under ERISA, 13 a plaintiff “must avail himself or herself of a plan’s own internal review procedures before 14 bringing suit in federal court.” Diaz v. United Agric. Employee Welfare Benefit Plan & 15 Trust, 50 F.3d 1478, 1483 (9th Cir.1995). “[T]he federal courts have the authority to 16 enforce the exhaustion requirement in suits under ERISA, and … as a matter of sound 17 policy they should usually do so.” Amato v. Bernard, 618 F.2d 559, 568 (9th Cir. 1980).8 18 Here, BoA’s plan clearly had “internal review procedures” that Plaintiff was 19 required to follow prior to bringing this lawsuit. The SPD lists actions that an employee 20 “must take as soon as it’s clear that a disability absence will last more than 180 calendar 21 days.” (Doc. 77-1 p. 16). The second step is “initiate a claim” by contacting “the LTD 22 [long-term disability] Claims Administrator.” (Doc. 77-1 p. 16). “The deadline for filing a 23 claim for [long-term] benefits is 90 days after the end of the 180-day elimination period.” 24 (Doc. 77-1 p. 17). Plaintiff does not allege that he ever initiated a claim for long-term 25

26 8 The “exhaustion requirement applies only if the relevant plan requires exhaustion.” Greiff v. Life Ins. Co. of N. Am., 386 F. Supp. 3d 1111, 1113 (D. Ariz. 2019). Here, the relevant 27 plan requires exhaustion: “You can bring a civil action against a component plan for 28 benefits, but only after you’ve exhausted your administrative review rights under that plan.” (Doc. 77-1 p. 22) (emphasis added). 1 disability benefits. Plaintiff says he was terminated so that BoA could “avoid[] helping him 2 file for LTD [long-term disability].” (Doc. 65 p. 12). It is unclear how MetLife was 3 negligent regarding long-term benefits if MetLife did not receive a claim for long-term 4 disability benefits. Furthermore, Plaintiff clearly did not exhaust the plan’s internal review 5 procedures if he did not initiate a claim. 6 iii. Conclusion: MetLife (Claim 7) 7 After reviewing this cause of action, the Court concludes that the facts alleged are 8 (1) insufficient to state a claim for negligence and (2) insufficient to state a claim under 9 ERISA. The Court will not grant leave to amend because further amendment of this theory 10 of negligence and omission would be futile for the reasons discussed above (see supra 11 Section III.a(i)(2)). 12 2. Against Sedgwick (Claim 10) 13 Sedgwick replaced MetLife as BoA’s claim administrator for short-term disability 14 claims only. See supra Section I. The analysis here is thus the same as the analysis above 15 for MetLife’s short-term disability benefit plan: Sedgwick did not owe Plaintiff a duty of 16 care because there was no contractual relationship between Plaintiff and Sedgwick. See 17 supra Section III.b(iii)(1)(i). Sedgwick took over as the claim administrator of the short- 18 term disability plan funded by BoA. Just as Plaintiff did not have a contractual relationship 19 with MetLife for short-term disability, Plaintiff does not have a contractual relationship 20 with Sedgwick for short-term disability. Rather, Sedgwick has a contractual relationship 21 with BoA. Finally, the SPD explicitly states that “[t]he provisions of [the] summary do not 22 establish enforceable employee rights, contractual or otherwise.” (Doc. 77-1 p. 4). Because 23 Plaintiff has not pled sufficient facts to establish the elements of negligence, this claim is 24 dismissed. 25 iv. Against MetLife (Claim 8) 26 Plaintiff’s eighth cause of action is against MetLife for “Wrongful denial of leave 27 benefits short and long-term.” Plaintiff appears to be alleging a breach of contract claim, 28 alleging that MetLife breached a contract when it denied Plaintiff benefits that “Plaintiff 1 was contractually entitled to.” The Court will analyze the claim as such. 2 1. Short-Term Disability Benefits 3 This claim is not preempted by ERISA because, as established above, the short- 4 term disability benefit plan is exempt from ERISA. 5 Under Arizona law, the elements of a breach of contract claim are: “(1) the existence 6 of a contract; (2) breach; and (3) resulting damages.” First Am. Title Ins. Co. v. Johnson 7 Bank, 372 P.3d 292, 297 (Ariz. 2016). 8 Plaintiff fails to plead facts to meet the first element. As discussed above, MetLife 9 is the claim administrator of the short-term disability plan funded by BoA. (Doc. 77-2 p. 10 4). The only contract is between MetLife and BoA (not MetLife and Plaintiff). In fact, the 11 SPD explicitly states that “[t]he provisions of [the] summary do not establish enforceable 12 employee rights, contractual or otherwise.” (Doc. 77-1 p. 4). 13 2. Long-Term Disability Benefits 14 ERISA preempts Plaintiff’s breach of contract claim with respect to long-term 15 disability benefits. See supra Section III.b(ii). Plaintiff does not have a claim under ERISA 16 because he failed to avail himself of the plan’s own internal review procedures before 17 bringing suit. See supra Section III.b(iii)(1)(ii). 18 3. Conclusion (Claim 8) 19 After reviewing this cause of action, the Court concludes that the facts alleged are 20 (1) insufficient to state a claim for breach of contract and (2) insufficient to state a claim 21 under ERISA. The Court will not grant leave to amend because further amendment of this 22 theory of negligence and omission would be futile for the reasons discussed above (see 23 supra Section III.a(i)(2)). 24 v. Against MetLife and Sedgwick: Claims 9 and 11 for “Failure to Consider Evidence of Limitations Claimant Submitted” 25 26 Plaintiff again appears to allege a breach of contract claim, arguing that MetLife, 27 and subsequently Sedgwick, breached a contract when they allegedly “fail[ed] to consider 28 evidence of limitations claimant submitted.” The Court will analyze the claims as such. 1 1. Against MetLife (Claim 9) 2 i. Short-Term Disability Benefits 3 This claim is not preempted by ERISA because, as established above, the short-term 4 disability benefit plan is exempt from ERISA. See supra Section III.b(i). However, as 5 discussed above, there can be no breach of contract claim between Plaintiff and MetLife 6 because there is no contract; the only contract is between MetLife and BoA (not MetLife 7 and Plaintiff). See supra Section III.b(iii)(1)(i). 8 ii. Long-Term Disability Benefits 9 ERISA preempts Plaintiff’s breach of contract claim with respect to long-term 10 disability benefits. See supra Section III.b(ii). Plaintiff does not have a claim under ERISA 11 because he failed to avail himself of the plan’s own internal review procedures before 12 bringing suit. See supra Section III.b(iii)(1)(ii). 13 iii. Conclusion (Claim 9) 14 After reviewing this cause of action, the Court concludes that the facts alleged are 15 (1) insufficient to state a claim for breach of contract and (2) insufficient to state a claim 16 under ERISA. The Court will not grant leave to amend because further amendment of this 17 theory would be futile for the reasons discussed above. See supra Section III.a(i)(2). 18 2. Against Sedgwick (Claim 11) 19 This claim is not preempted by ERISA because, as established above, the short-term 20 disability benefit plan is exempt from ERISA. However, the legal basis for this claim is 21 unclear. Plaintiff alleges a “failure to consider evidence of limitations claimant submitted,” 22 but then writes that Sedgwick denied his appeal “due to no additional supporting 23 documentation being submitted.” (Doc. 65 p. 12). Regardless, as discussed above, there 24 can be no breach of contract claim between Plaintiff and Sedgwick because the only 25 contract is between Sedgwick and BoA (not Sedgwick and Plaintiff). See supra Section 26 III.b(iii)(1)(i). After reviewing this cause of action, the Court concludes that the facts 27 alleged are insufficient to state a claim for breach of contract. The Court will not grant 28 leave to amend because further amendment of this theory would be futile for the reasons discussed above. See supra Section III.a(i)(2). 3 Accordingly, 4 IT IS ORDERED that Defendant Bank of America’s Motion to Dismiss (Doc. 76) 5|| is GRANTED. 6 IT IS ORDERED that Defendants Metropolitan Life Insurance Co. and Sedgwick 7\| Claims Management Services, Inc. Motion to Dismiss (Doc. 77). is GRANTED. 8 IT IS FINALLY ORDERED that the Clerk of the Court shall enter judgment in 9|| favor of Defendants and against Plaintiff. The motions for attorneys’ fees (Docs. 73 & 74) remain pending. 11 Dated this 12th day of September, 2024. 12 13 oe □ C 14 15 _ James A. Teil Org Senior United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28

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