Sheets v. Winslow, City of

• Court: District Court, D. Arizona
• Decided: June 12, 2020
• Docket: 3:19-cv-08187
• Status: Unknown

Opinion

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

9 Roberto Sheets, No. CV-19-08187-PCT-JJT

10 Plaintiff, ORDER

11 v.

12 City of Winslow,

13 Defendant. 14 15 16 At issue is Defendant’s Motion to Dismiss Plaintiff’s Second Amended Complaint 17 (Doc. 26, Mot.), to which Plaintiff filed a Response (Doc. 30, Resp.) and Defendant filed 18 a Reply (Doc. 31). For the reasons that follow, the Court grants Defendant’s Motion. 19 I. BACKGROUND 20 After the Court dismissed Plaintiff’s First Amended Complaint (“FAC”) for failure 21 to state a claim (Doc. 21, Order), Plaintiff filed his Second Amended Complaint “(SAC”) 22 (Doc. 23). The FAC contained five counts of race, religious, and age discrimination, and a 23 claim for retaliation under Title VII of the Civil Rights Act of 1964. The SAC asserts just 24 two counts of race discrimination, one brought under the Arizona Civil Rights Act 25 (“ACRA”) and one brought under Title VII. 26 The SAC makes the following allegations, which the Court construes as true for 27 purposes of resolving Defendant’s Motion. Plaintiff, a Mexican man, was a police officer 28 for Defendant, the City of Winslow, from 2007 until his termination in October 2015. In 1 October 2014, Plaintiff tested for and was awarded the rank of Corporal based on his test 2 scores. (SAC ¶ 11.) The personnel action form that detailed his promotion listed his 3 promotion date as November 3, 2014 and checked the box providing for a six-month 4 probationary period. (SAC ¶ 13.) Sometime later, Plaintiff discovered the form contained 5 handwritten alterations that scratched out the November 3 date and amended his effective 6 promotion date to January 12, 2015. It also scratched out the six-month probationary period 7 and checked the box requiring one year of probation for the Corporal position. (SAC ¶ 14.) 8 In May 2015, Winslow Police Lieutenant Arend recommended Plaintiff’s “position 9 as Corporal be receded to Officer . . . for failure to successfully complete probation,” and 10 Plaintiff was subsequently demoted back to Officer. (SAC ¶ 15.) In October 2015, 11 Defendant terminated Plaintiff’s employment for an alleged willful violation of policy that 12 occurred in August 2015 and for failure to complete his probationary status. (SAC ¶ 16.) 13 The termination recommendation was authored and signed by Arend and signed by the 14 Chief of Police and the City Manager. (SAC ¶ 16.) 15 The SAC alleges that during and after the time Plaintiff was employed as an Officer 16 and Corporal, a similarly situated white Officer, Austin Shipley, was treated more 17 favorably. Shipley allegedly committed multiple policy violations and instances of 18 misconduct from August 2013 until March 2016, including tampering with evidence, 19 punching a nonaggressive intoxicated man in the face, targeting and harassing civilians, 20 tasing a restrained man, tasing a 15-year-old, and shooting and killing a woman after 21 responding to a shoplifting call. (SAC ¶ 18.) Shipley was not terminated from employment 22 after these events. (SAC ¶ 18.G) 23 Plaintiff alleges “Defendant, through its supervisors, agents, and employees, 24 engaged in a pattern of discrimination based on race and directed against [Plaintiff], which 25 ultimately concluded with the termination of his employment.” (SAC ¶ 24.) He also alleges 26 the delay in his promotion’s effective date and the extension to his probationary period 27 constituted adverse employment actions, as did his demotion back to Officer. As already 28 noted, he asserts two claims against Defendant: (1) discrimination based on race in 1 violation of ACRA and (2) discrimination based on race in violation of Title VII. Defendant 2 moves to dismiss both claims with prejudice. 3 II. LEGAL STANDARD 4 Federal Rule of Civil Procedure 12(b)(6) is designed to “test[] the legal sufficiency 5 of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A dismissal under Rule 6 12(b)(6) for failure to state a claim can be based on either (1) the lack of a cognizable legal 7 theory or (2) insufficient facts to support a cognizable legal claim. Balistreri v. Pacifica 8 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). When analyzing a complaint under Rule 9 12(b)(6), the well-pled factual allegations are taken as true and construed in the light most 10 favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). 11 Legal conclusions couched as factual allegations are not entitled to the assumption of truth, 12 Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and therefore are insufficient to defeat a 13 motion to dismiss for failure to state a claim, In re Cutera Sec. Litig., 610 F.3d 1103, 1108 14 (9th Cir. 2010). On a Rule 12(b)(6) motion, Rule 8(a) governs and requires that, to avoid 15 dismissal of a claim, Plaintiff must allege “enough facts to state a claim to relief that is 16 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 17 III. ANALYSIS 18 ACRA is “generally identical to Title VII, and therefore federal Title VII case law 19 is persuasive” in interpreting ACRA. Bodett v. CoxCom, Inc., 366 F.3d 736, 742 (9th Cir. 20 2004) (internal brackets omitted); Higdon v. Evergreen Int’l Airlines, Inc., 673 P.2d 907, 21 909 n.3 (Ariz. 1983). The Court will therefore analyze both Counts 1 and 2 under the well- 22 established Title VII framework. 23 Under Title VII, it is illegal for an employer “to discharge any individual, or 24 otherwise to discriminate against any individual . . . because of such individual’s race[.]” 25 42 U.S.C. § 2000e-2(a). In analyzing Title VII disparate treatment claims, the Court utilizes 26 the standard originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 27 (1973). Plaintiff must state sufficient facts to show that “(1) he is a member of a protected 28 class; (2) he was qualified for his position; (3) he experienced an adverse employment 1 action; and (4) similarly situated individuals outside his protected class were treated more 2 favorably, or other circumstances surrounding the adverse employment action give rise to 3 an inference of discrimination.” Peterson v. Hewlett–Packard Co., 358 F.3d 599, 603 (9th 4 Cir. 2004) (citing McDonnell Douglas, 411 U.S. at 802). Defendant does not raise an 5 argument as to the first three prongs; it argues the SAC fails to allege sufficient facts to 6 establish the fourth element. (Mot. at 3.) The Court agrees. 7 Plaintiff asserts he was terminated for allegedly willfully violating policy and for 8 failing to complete his probationary status. Attempting to satisfy the similarly situated 9 prong, the SAC alleges that Austin Shipley, a white Officer, committed various policy 10 violations and was not terminated. As the Court stated in its Order dismissing the FAC, 11 “[w]hen utilizing the similarly situated framework, Plaintiff must show that he and the 12 individuals outside his protected class are similarly situated ‘in all material respects.’” 13 (Order at 6, quoting Moran v. Selig, 447 F.3d 748, 754 (9th Cir. 2006).) It dismissed the 14 FAC in part because it failed to provide facts as to how the unnamed white officer was 15 similar to Plaintiff in all material respects. (Order at 6.) 16 This time the SAC identifies a white counterpart’s name (Shipley) and position 17 (Officer), but it again fails to demonstrate how Shipley and Plaintiff were similar in all 18 material respects. Regarding the first basis for his termination, committing a willful policy 19 violation, the SAC does not identify Plaintiff’s alleged violation, a detail that is crucial to 20 raising an inference that he and Shipley were similarly situated, yet treated differently when 21 they committed like policy violations. As to the second stated reason for Plaintiff’s 22 termination, failure to complete his probationary period, the SAC does not mention 23 anything about Shipley’s employment status or whether he ever went through any type of 24 probationary period.1 25 1To the extent the adverse employment action is Plaintiff’s demotion or the extended 26 probationary period of one year, the claim fails for the same reason: no facts suggest that Shipley went through a shorter probationary period or was not demoted. Indeed, the SAC 27 lists Shipley’s position as an Officer, rather than a Corporal, which raises only two possibilities: Shipley was either never promoted to Corporal and is therefore not similarly 28 situated in that respect, or he was promoted and then later demoted, thereby suffering the same adverse action as Plaintiff. 1 The Ninth Circuit recently addressed a markedly similar issue and fact pattern in 2 Bastidas v. Good Samaritan Hosp. LP, 774 F. App’x 361, 364 (9th Cir. 2019). Although 3 unpublished, the court’s analysis and conclusion are both persuasive and applicable here. 4 The plaintiff in Bastidas was a member of a protected class and a surgeon at a hospital. His 5 surgical protections were suspended and he was subjected to peer review after he 6 performed a pancreatic procedure during which he removed the patient’s kidney and the 7 patient died three days later. He alleged he suffered discrimination because two white 8 physicians were not subjected to the same restrictions after they were involved in patient 9 deaths. Bastidas, 774 F. App’x at 362. 10 The Ninth Circuit held the plaintiff failed to state a claim for discrimination because 11 he did not adequately show that he and the two white physicians were similarly situated. 12 Specifically, the plaintiff did not allege that (1) the three had similar jobs (i.e., performed 13 similar types of surgeries); (2) the white doctors engaged in conduct similar to his (i.e., that 14 those doctors’ patients’ deaths were the result, at least in part, of errors); (3) the hospital 15 received complaints following the incidents involving the white doctors, as it did after the 16 plaintiff’s incident; and (4) the mistakes of the white doctors were of comparable 17 seriousness to the one made by the plaintiff. Bastidas, 774 F. App’x at 363–64. 18 Here, the SAC alleges only that Plaintiff and Shipley were Officers, and that the 19 former was terminated for violating policy but the latter was not. The following 20 information is unidentified: what Plaintiff’s policy violation was and whether the two 21 “engaged in problematic conduct of comparable seriousness,” see Vasquez v. Cty. of Los 22 Angeles, 349 F.3d 634, 641 (9th Cir. 2003); whether Plaintiff and Shipley performed 23 similar duties as Officers—officers could perform desk duties, investigative work, 24 emergency response, or street patrol; how long Shipley had worked for Defendant and 25 whether they had the same employment status; or whether they were subject to the same 26 decision-maker. The Court recognizes that not all these factors may be necessary to state a 27 claim, and a plaintiff alleging discrimination need not be identical to his comparator. Hawn 28 1 v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1157 (9th Cir. 2010).2 What is material “will 2 depend on context and the facts of the case.” Id. However, Plaintiff has provided virtually 3 no information to demonstrate similarity in what would be material in the context of a 4 termination for committing policy violations, an extended probationary period, or a 5 demotion.3 6 In addition to the similarly situated paradigm, a plaintiff can also state a claim for 7 discrimination by showing “other circumstances surrounding the adverse employment 8 action [gave] rise to an inference of discrimination.” Peterson, 358 F.3d at 603; see also 9 Hawn, 615 F.3d at 1156. Other than the fact that Plaintiff is Mexican, the SAC contains no 10 facts that give rise to an inference that he was terminated or demoted based on his race or 11 national origin. The Court addressed this deficiency in its Order dismissing the FAC, 12 (Order at 7), but the SAC failed to cure it. 13 In dismissing the FAC, the Court provided a framework for Plaintiff to allege a race 14 discrimination claim, including the applicable legal standards and case law illustrating 15 what level of factual detail is either sufficient or insufficient to state a claim. That the SAC 16 was unable to meet this standard, despite the Court’s roadmap, leads the Court to conclude 17 that inclusion of the material facts would only show that he and Shipley were not 18 sufficiently similarly situated. Accordingly, the Court finds Plaintiff cannot state a 19 plausible claim for discrimination against Defendant and therefore, pursuant to its Order 20 on March 6, 2020, dismisses the SAC with prejudice. 21

22 2 To this point, the Ninth Circuit has stated that the “same supervisor” factor is not a strictly imposed condition in all cases. In Hawn, the fact that the plaintiffs did not have 23 the same direct supervisor as the comparators was of little import because both groups had the same the ultimate decision-maker who treated them disparately. Thus, while not always 24 necessary, whether they had the same supervisor or decision-maker can be relevant, and the Court finds that it is here. But even if it accepted Plaintiff’s assertion in the Response— 25 which was not alleged in the SAC—that Plaintiff and Shipley did have the same supervisor, the Court still concludes that the SAC is missing other pertinent facts that would show the 26 two were similarly situated.

27 3 Curiously, Plaintiff himself states, “In general, [meeting the similarly situated prong] requires evidence that the comparators had the same supervisor, were subject to the 28 same standards, and engaged in the same conduct.” (Resp. at 9.) But as already noted, the FAC alleges none of these facts. 1 IT IS THEREFORE ORDERED granting Defendant’s Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. 26). Plaintiff's Second Amended Complaint 3 || is dismissed with prejudice. 4 IT IS FURTHER ORDERED directing the Clerk of Court to close this case. 5 Dated this 12th day of June, 2020. CN

Unifga StatesDistrict Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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