1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Skylar Simpson, No. CV-25-00081-PHX-SMB
10 Plaintiff, ORDER
11 v.
12 Mark E Hall PC, et al.,
13 Defendants. 14 15 Pending before the Court is Defendants Mark E. Hall, P.C., Mark E. Hall, Jane Doe 16 Hall (collectively, “Hall”), Robert Levin, Jane Doe Levin (collectively, “Levin”), and 17 Safeguard Estate and Financial, LLC’s (“Safeguard”) Motion to Dismiss (Doc. 11) Plaintiff 18 Skylar Simpson’s Complaint (Doc. 1). Plaintiff filed a Response (Doc. 15), and 19 Defendants filed a Reply (Doc. 18). After reviewing the briefing and the relevant case law, 20 the Court will grant in part Defendant’s Motion. The Court will grant Plaintiff leave to 21 amend the dismissed claims, except those arising under the Americans with Disabilities 22 Act, the Fair Wages and Healthy Families Act, and the Arizona Civil Rights Act. 23 I. BACKGROUND 24 On September 21, 2021, Plaintiff began working for Mark E. Hall, P.C. as an estate 25 planning paralegal. (Doc. 1-1 (“Compl.”); Compl. ¶¶ 1–2, 8, 25.) To facilitate its estate 26 planning practice, Hall used Safeguard to provide certain client services. (Id. ¶ 10.) 27 Safeguard did not supervise Plaintiff. (See generally id.) 28 Beginning in early 2023, Levin, a Safeguard employee, subjected Plaintiff to 1 repeated and escalating sexual harassment. (Id. ¶ 26.) Levin would enter Plaintiff’s office 2 uninvited, close the door, and would tell sexual stories, make sexual gestures, and pretend 3 to pull his pants down. (Id. ¶¶ 27–28.) Levin’s actions caused Plaintiff to fear for her and 4 her unborn child’s safety. (Id. ¶ 28.) 5 On May 12, 2023, Plaintiff reported the harassment to a co-owner of Safeguard. (Id. 6 ¶ 29.) Plaintiff alleges that Safeguard failed to take meaningful action to address Levin’s 7 behavior. (Id.) Plaintiff also reported Levin’s actions to Hall via text. (Id. ¶ 30.) On May 8 24, Hall summoned Plaintiff to his office to discuss the allegations. (Id. ¶ 31.) In that 9 meeting, Hall berated Plaintiff for reporting the harassment and declared that, unless 10 Plaintiff was physically sexually assaulted, there was “nothing to be done.” (Id. ¶ 32.) 11 Hall terminated Plaintiff on July 10, 2023. (See id.; Doc. 11-1 at 2.) Plaintiff filed 12 an intake inquiry with the Equal Employment Opportunity Commission (“EEOC”) on 13 August 2, 2023, and an EEOC charge of discrimination (the “EEOC Charge”) on March 14 11, 2024. (Compl. ¶ 48.) Plaintiff’s EEOC Charge alleged sexual and sex-based 15 harassment. (Doc. 11-1 at 2–3.) On August 21, 2024, the EEOC dismissed Plaintiff’s 16 charge because Hall does not employ the requisite number of employees for Title VII of 17 the Civil Rights Act of 1964 (“Title VII”) or the Americans with Disabilities Act (“ADA”) 18 to apply. (Id. at 6.) 19 Plaintiff filed this lawsuit on November 19, 2024, in Maricopa County Superior 20 Court, and Defendants removed it to federal court. (Doc. 1-1; Doc. 1.) Plaintiff brings 21 claims under the ADA, Title VII, the Arizona Civil Rights Act (“ACRA”), the Fair Wages 22 and Healthy Families Act (“FWHFA”), and Arizona common law. (See generally Compl.) 23 II. LEGAL STANDARD 24 To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must meet 25 the requirements of Rule 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the 26 claim showing that the pleader is entitled to relief,” so that the defendant has “fair notice 27 of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 28 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). This exists 1 if the pleader sets forth “factual content that allows the court to draw the reasonable 2 inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 3 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported 4 by mere conclusory statements, do not suffice.” Id. 5 Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory 6 or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. 7 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A complaint that sets forth a 8 cognizable legal theory will survive a motion to dismiss if it contains sufficient factual 9 matter, which, if accepted as true, states a claim to relief that is “plausible on its face.” 10 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Plausibility does not equal 11 “probability,” but requires “more than a sheer possibility that a defendant has acted 12 unlawfully.” Id. “Where a complaint pleads facts that are ‘merely consistent with’ a 13 defendant’s liability, it ‘stops short of the line between possibility and plausibility.’” Id. 14 (quoting Twombly, 550 U.S. at 557). 15 In ruling on a Rule 12(b)(6) motion to dismiss, the well-pled factual allegations are 16 taken as true and construed in the light most favorable to the nonmoving party. Cousins v. 17 Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, legal conclusions couched as 18 factual allegations are not given a presumption of truthfulness, and “conclusory allegations 19 of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto 20 v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). A court ordinarily may not consider evidence 21 outside the pleadings in ruling on a Rule 12(b)(6) motion to dismiss. See United States v. 22 Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). “A court may, however, consider materials— 23 documents attached to the complaint, documents incorporated by reference in the 24 complaint, or matters of judicial notice—without converting the motion to dismiss into a 25 motion for summary judgment.” Id. at 908. 26 III. DISCUSSION 27 A. The ADA and Title VII 28 1. Employee-numerosity requirement 1 Defendants assert that the Title VII and ADA claims ought to be dismissed for lack 2 of jurisdiction because Plaintiff did not (and cannot) allege that Hall employs fifteen or 3 more employees.1 (Doc. 11 at 4.) Plaintiff responds that her allegations of “joint employer 4 liability permits aggregation of employees” of Hall and Safeguard to bring the number of 5 employees over the statutory threshold. (Doc. 15 at 10.) 6 To be defined as an employer under Title VII, a defendant must have fifteen or more 7 employees for each working day in each of twenty or more calendar weeks in the current 8 or preceding calendar year. See 42 U.S.C. § 2000e(b). Where a single employer may not 9 have fifteen or more employees, a plaintiff may establish an integrated enterprise and 10 aggregate the number of employees from multiple businesses by proving “(1) interrelation 11 of operations; (2) common management; (3) centralized control of labor relations; and (4) 12 common ownership or financial control.” Kang v. U. Lim Am., Inc., 296 F.3d 810, 815 13 (9th Cir. 2002) (Title VII); Buchanan v. Watkins & Letofsky, LLP, 30 F.4th 874, 877 (9th 14 Cir. 2022) (ADA). 15 In this case, the EEOC determined that Hall did not employ the requisite number of 16 employees for Title VII to apply. (Doc. 11-1 at 6.) Though not wholly clear from the 17 Complaint, Plaintiff ostensibly seeks to allege that Hall and Safeguard are an integrated 18 enterprise such that Title VII protections apply. (See generally Compl.) The relevant 19 allegations are as follows: 20 Safeguard was engaged in business with Mark E. Hall, P.C., collectively providing estate planning services to customers. 21 . . . . 22 Safeguard and Mark E. Hall, PC., were engaged in the leasing and/or usage of a business establishment. 23 . . . . [T]o our belief, Mark E. Hall, P.C. was engaged in a joint venture, joint 24 employer, or special employer relationship with Safeguard. 25 Mark E. Hall, P.C. and safeguard are both ‘employers’ of Plaintiff due to their joint venture, agency, joint employer, or special employer relationship. 26 27 1 The United States Supreme Court explained that “the threshold number of employees for 28 application of Title VII is an element on a plaintiff’s claim for relief, not a jurisdictional issue.” Arbaugh v. Y&H Corp., 546 U.S. 500, 516 (2006). 1 (Doc. 1-1 ¶¶ 10, 12, 15, 19; see also Doc. 15-1 (EEOC Inquiry Form stating that Simpson 2 is “uncertain” about Hall’s “number of employees”).) 3 The allegations leave many questions unanswered, including how many persons 4 Safeguard employs, the extent of the interrelation between Safeguard and Hall P.C.’s 5 operations, who among the employees managed the business and controlled labor relations 6 and how they did so, and the commonality of ownership and finances. Cf. Courtland v. 7 Carpenters Local 408, United Bhd. of Carpenters & Joiners of Am., CV-07-0331-PHX- 8 SRB, 2008 WL 11338793, at *7 (D. Ariz. Feb. 1, 2008) (finding no integrated enterprise 9 where the plaintiff failed to “make any specific allegations regarding UBC’s control over 10 the workforce and labor relations, and fail[ed] to make allegations relevant to the other 11 factors of the integrated enterprise test.”). Plaintiff has failed to simply set forth plausible 12 allegations that a Hall and Safeguard engaged in an integrated enterprise. As a result, the 13 Complaint fails to allege that Hall has the requisite number employees for Title VII or 14 ADA to apply to its business. For that reason, the Court will grant Defendants’ Motion to 15 Dismiss the Title VII and ADA claims. See 42 U.S.C. §§ 2000(e)(b), 12111. The Title 16 VII claim will be dismissed without prejudice. For the reasons discussed in the proceeding 17 section, the ADA claim will be dismissed with prejudice. 18 2. Administrative Remedies 19 Critically, Plaintiff did not allege an ADA violation in her EEOC charge. (See Doc. 20 11-1 at 2–3 (alleging sexual harassment, sex discrimination, and retaliation).) In her 21 Response, Plaintiff attached an EEOC Inquiry form submitted to the Phoenix District 22 Office on August 2, 2023. (Doc. 15-1 at 11.) Therein, Plaintiff alleges that her employer 23 retaliated against her based on her disability, which she describes as “mental and 24 pregnancy.” (See id. at 12.) But when Plaintiff filed her EEOC Charge on March 11, 2024, 25 she did not include a claim for disability discrimination or any other ADA related claim. 26 (Doc. 11-1 at 2–3.) 27 A “charge” and pre-charge “information” (or inquiry) are separate documents 28 submitted to the EEOC. Title VII regulations explain that “[t]he Commission shall receive 1 information concerning alleged [Title VII] violations . . . . Where the information discloses 2 that a person is entitled to file a charge . . . the appropriate office shall render assistance in 3 filing of a charge.” 29 C.F.R. §§ 1601.6(a); see also 29 C.F.R. § 1601.7 (discussing 4 submission of a charge). But, in most instances, the EEOC Charge itself must contain the 5 claims that a potential plaintiff hopes to later bring in federal court. Chen v. Salt River 6 Project, No. CV-21-00744-PHX-SMB, 2021 WL 5988595, at *4 (D. Ariz. Dec. 17, 2021) 7 (explaining the requirement that a plaintiff must first file a charge with the EEOC or 8 Arizona Civil Rights Division before bringing an ADA claim in federal court). Some 9 circuits recognize that an inquiry may stand in for a charge, but only when the EEOC 10 forwards the inquiry to the employer to serve as a “Notice of Charge of Discrimination.” 11 See Wilcox v. Corr. Corp. of Am, 603 Fed. Appx. 862, 864 (11th Cir. 2015). 12 Here, the EEOC did not send Plaintiff’s inquiry to Hall as a separate charge, and 13 Plaintiff filed an EEOC Charge that did not include a disability discrimination claim. The 14 consequence is that Plaintiff has failed to exhaust her administrative remedies as required 15 to pursue her ADA claim in federal court. See Chen, 2021 WL 5988595, at *4. 16 To make matters worse, the deadline for Plaintiff to file with the EEOC has expired. 17 Hall terminated Plaintiff on July 10, 2023, which is the last possible date for an ADA 18 violation to have occurred. The time to file a charge with the EEOC thus began on that 19 same date. See id. (citing 42 U.S.C. § 12117(a)). Assuming the extended 300-day filing 20 window applies, the absolute latest Plaintiff could have filed a charge with the EEOC for 21 her ADA claim was May 6, 2024.2 To date, Plaintiff has not filed such a charge and thus 22 her claim is time barred. The Court will dismiss her ADA claim with prejudice. 23 2 Arizona has its own state agency empowered to investigate and remedy allegations of 24 discrimination in employment, Arizona is “a so-called ‘deferral’ state.” Cox v. Global Tool Supply LLC, 629 F. Supp. 3d 963, 968 (D. Ariz. 2022) (quoting Laquaglia v. Rio Hotel & 25 Casino, Inc., 186 F.3d 1172, 1174 (9th Cir. 1999). In deferral states, the deadline for a complainant to file her Title VII claim with the EEOC is extended from the ordinary 180 26 days to 300 days after the challenged practice, provided the complainant first initiates proceedings with the stage agency. Id. “But where, like here, the ACRD and EEOC are 27 parties to a worksharing agreement, ‘a complainant ordinarily need not file separately with federal and state agencies.’” Id. (quoting Fort Bend County v. Davis, 587 U.S. 541, 544 28 (2019)). The complainant “may file her charge with one agency, and that agency will then relay the charge to the other.” Davis, 587 U.S. at 544. 1 B. ACRA 2 A prerequisite to bringing an ACRA claim is for an aggrieved employee to file a 3 charge of discrimination within 180 days of the alleged unlawful employment practice. 4 Ariz. Rev. Stat. § 41-1481(A); Ornealas v. Scoa Indus., Inc., 587 P.2d 266–67 (Ariz. Ct. 5 App. 1978). Plaintiff contends that the statute of limitations on her ACRA claim is 6 extended to 300 days because “a state or local agency enforces a law that prohibits the 7 same type of discrimination” and the EEOC and Arizona Civil Rights Division (“ACRD”) 8 have a worksharing agreement. (Doc. 15 at 13–14.) This, however, does not alter the plain 9 statutory text of § 41-1481(A), which requires a claimant to file a claim within 180-days. 10 See Terry v. United Parcel Servs. Inc., No. CV-17-04792-PHX-DJH, 2018 WL 8619996, 11 at *2 (D. Ariz. Oct. 4, 2018) (“While the ACRA is modeled after and is generally identical 12 to Title VII of the Civil Rights Act, the ACRA and Title VII do differ in certain respects. 13 One such difference is that Title VII includes an extension of time to file a charge of 14 discrimination to 300 days in deferral states, such as Arizona, while the ACRA does not 15 contain a similar extension.” (citation modified)); Uchikura v. Willis Towers Watson Call 16 Ctr., No. CV-22-00002-PHX-DWL, 2022 WL 17552449, at *12 (D. Ariz. Dec. 9, 2022) 17 (“As an initial matter, although both sides suggest that a 300-day limitations period (i.e., 18 the limitations period for exhaustion of federal employment discrimination claims in 19 deferral states like Arizona) applies in relation to all of Plaintiff’s claims, Plaintiff’s ACRA 20 claim was subject to the 180-day limit.”). 21 Measuring from July 10, 2023—the last day her claim could have accrued—the 22 latest Plaintiff could have filed with the ACRD was January 6, 2024. Plaintiff did not file 23 her charge until March 11, 2024, rendering the claim time barred. Plaintiff’s claims arising 24 under the ACRA will be dismissed with prejudice. 25 C. FWHFA 26 Defendant moves to dismiss Plaintiff’s claim under the FWHFA. (Doc. 11 at 8–10.) 27 Plaintiff fails to address Defendant’s argument in her Response. (See generally Doc. 15.) 28 “This provides an independent basis for granting the motion to dismiss.” Medrano v. 1 Carrington Foreclosure Servs. LLC, No. CV-19-04988-PHX-DWL, 2019 WL 6219337, at 2 *6 (D. Ariz. Nov. 21, 2019) (citing Stichting Pensioenfonds ABP v. Countrywide Fin. 3 Corp., 802 F. Supp. 2d 1125, 1132 (C.D. Cal. 2011) (“[I]n most circumstances, failure to 4 respond in an opposition brief to an argument put forward in an opening brief constitutes 5 waiver or abandonment in regard to the uncontested issue.”)). The Court will therefore 6 dismiss Plaintiff’s FWHFA claim with prejudice. See Currie v. Maricopa County Cmty. 7 College Dist., No. CV-07-2093-PHX-FJM, 2008 WL 2512841, at *2 n.1 (D. Ariz. June 20, 8 2008). 9 D. Arizona Common Law 10 Plaintiff brings claims against each Defendant for intentional infliction of emotional 11 distress (“IIED”) and negligence. (Compl. ¶¶ 33, 52.) 12 1. IIED 13 The three required elements for IIED are: (1) “the conduct by the defendant must 14 be ‘extreme’ and ‘outrageous,’” (2) “the defendant must either intend to cause emotional 15 distress or recklessly disregard the near certainty that such distress will result from his 16 conduct,” and (3) “severe emotional distress must indeed occur as a result of defendant’s 17 conduct.” Ford v. Revlon, Inc., 734 P.2d 580, 585 (Ariz. 1987). “In Arizona, conduct 18 necessary to sustain an [IIED] claim falls at the very extreme edge of possible conduct.” 19 St. George v. Home Depot U.S.A., Inc., No. CV-04-1210-PCT-LOA, 2007 WL 604925, 20 at *4 (D. Ariz. Feb. 22, 2007) (citation modified). Arizona follows the definition of the 21 “extreme and outrageous conduct” element provided in the Restatement (Second) of Torts 22 § 46 (comment d): 23 Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of 24 decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to 25 an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” 26 See Lucchesi v. Stimmell, 716 P.2d 1013, 1016 (1986). 27 Defendants move to dismiss Plaintiff’s IIED claim against Hall because it is based 28 upon employment-related actions that do not constitute extreme and outrageous conduct. 1 (Doc. 11 at 10–11 (citing Mintz v. Bell Atl. Sys. Leasing Int’l, Inc., 905 P.2d 559 (Ariz. Ct. 2 App. 1995)).) Defendants move to dismiss the IIED claims against Safeguard and Levin 3 for substantially similar reasons. (See Doc. 11 at 12–13.) 4 Plaintiff responds that Hall engaged in extreme and outrageous conduct by berating 5 her, dismissing her concerns, and wrongfully terminating her. (Doc. 15 at 15.) Plaintiff 6 further contends that her allegations pertaining to Levin’s pervasive sexual harassment, 7 including explicit comments, gestures, and intimidating behavior, is sufficient to show 8 extreme and outrageous conduct. (Doc. 15 at 14.) As to Safeguard, Plaintiff contends that 9 its knowledge of Levin’s conduct, as well as its decision to both hire and retain him, created 10 a foreseeable risk to Plaintiff and others. (Id. at 15.) As for damages, Plaintiff argues that 11 Defendants’ actions caused her severe emotional distress, including anxiety, panic attacks, 12 and a miscarriage. (Id. at 16.) 13 The relevant allegations in the Complaint are as follows: 14 Levin made inappropriate sexual comments and advances including . . . telling Plaintiff sexual stories, making sexual gestures, and pretending to pull 15 his pants down in Plaintiff’s presence. Levin entered Plaintiff’s office uninvited, closed the door, and subjected her 16 to further sexual remarks and inappropriate behavior. 17 . . . . Plaintiff reported Levin’s harassment to a co-owner of Safeguard . . . no 18 meaningful action was taken to address Levin’s behavior. 19 . . . . Plaintiff also reported the sexual harassment to Hall. 20 . . . . 21 Hall subjected Plaintiff to verbal abuse, angrily chastising her for reporting the harassment. He berated her and stated that Levin was an “amazing 22 salesperson” whose value to the company outweighed her complaints. Hall further stated that unless Plaintiff was actually physically sexually assaulted, 23 there was “nothing to be done” about her harassment claim. 24 Defendants hall, Mark Hall P.C. Safeguard, and Levin or some combination of them, intentionally or recklessly caused Plaintiff emotional distress in that 25 their conduct was extreme and outrageous and their conduct caused Plaintiff to suffer severe emotional distress. 26 (Compl. ¶¶ 27–33.) 27 As it pertains to Hall, Plaintiff has failed to state an IIED claim. In Mintz, the court 28 found that it was not extreme and outrageous for an employer to force a woman to return 1 to work, fail to promote her, and hand deliver a letter reassigning her job duties. 905 P.2d 2 at 563. The Court noted that, even if the employer’s actions were “motivated by sex 3 discrimination or retaliation,” an IIED claim could not materialize on those facts. See id. 4 In this case, Hall berated Plaintiff, dismissed her concerns, and fired her after she reported 5 Levin, the employee of a separate company. Hall’s actions, construed as true, are 6 undoubtedly unsavory but are not so extreme or outrageous such that they “exceed[ed] all 7 bounds of decency.” See Mintz, 905 P.2d at 562–63 (“It is extremely rare to find conduct 8 in the employment context that will rise to the level of outrageousness necessary to provide 9 a basis for recovery for the tort of intentional infliction of emotional distress.” (citation 10 modified)). In its current state, the Complaint fails to state a claim for IIED against Hall. 11 Seeing as how this is Plaintiff’s first Complaint, the Court will dismiss the claim with leave 12 to amend. 13 Now, regarding Levin, Plaintiff alleges that he subjected her to sexual harassment 14 over a period of months, which resulted in “severe emotional distress.” (Compl. ¶ 33.) 15 Persistent sexual overtures may form the basis of extreme and outrageous conduct for an 16 IIED claim. See Ford, 734 P.2d at 585–86; Coffin v. Safeway, Inc., 323 F. Supp. 997, 17 1005–06 (D. Ariz. 2004) (allowing a claim to proceed where a plaintiff alleged she “was 18 continuously subjected to unwanted sexual harassment over an eight-month period”). 19 Defendants take issue with the specificity of Plaintiff’s pleading, contending that merely 20 stating Levin made inappropriate comments and gestures is not enough. (See Doc. 18 at 9.) 21 The Court disagrees with Defendants interpretation of the allegations. First, in Coffin, the 22 complaint set forth specific statements and actions taking place over seven months that 23 gave rise to plaintiff’s IIED claim. See 323 F. Supp. at 1004. Plaintiff’s Complaint lacks 24 the specificity provided in Coffin—i.e., specific statements—but she has alleged that Levin 25 would enter her office uninvited, close the door, tell sexual stories, make sexual gestures, 26 and simulate pulling his pants down. (See Compl. ¶¶ 27–28.) These are the types of 27 unwanted sexual advances that show extreme and outrageous conduct. See Coffin, 323 F. 28 Supp. at 1006–07; Lucchesi v. Stimmell, 716 P.2d at 1016. Moreover, taking a liberal 1 approach to Plaintiff’s pro se pleading and construing the well-pled allegations as true show 2 that Plaintiff has alleged enough factual material, at least as pertains to extreme and 3 outrageous conduct, to give Levin “fair notice of what the . . . claim is and the grounds 4 upon which it rests.” Twombly, 550 U.S. at 555; see also Erickson v. Pardus, 551 U.S. 89, 5 94 (2007) (“[A] pro se complaint, however inartfully pleaded, must be held to less stringent 6 standard that forma pleadings drafted by lawyers.” (citation modified)). 7 Like with Hall, Plaintiff fails to state a claim for IIED against Safeguard. As noted, 8 the accused’s conduct must “exceed[] all bounds of decency,” Mintz, 905 P.2d at 562–63, 9 but here, Plaintiff simply maintains that she reported Levin to a Safeguard co-owner on 10 May 12, 2023, and that no meaningful action was taken, (Compl. ¶ 29.) Plaintiff does not 11 expound on what she believes no “meaningful” action to be—which renders her allegations 12 pertaining to Safeguard nebulous and purely subjective. (See id.) As it stands, the Court 13 has no information from which it could determine that Safeguard’s actions were extreme 14 and outrageous. As a result, the Court will dismiss Plaintiff’s IIED claim against Safeguard 15 with leave to amend. 16 Turning to harm, the Court finds that Plaintiff has sufficiently alleged severe 17 emotional distress. Whether a plaintiff has suffered sufficiently severe emotional distress 18 is analyzed on a case-by-case basis. See Lucchesi v. Frederic N. Stimmell, M.D., Ltd., 716 19 P.2d 1013, 1016 (Ariz. 1986). To prevail on the claim, “the distress inflicted [must be] so 20 severe that no reasonable man could be expected to endure it.” Restatement (Second) of 21 Torts § 46, cmt. j; Midas Muffler Shop v. Ellison, 650 P.2d 496, 501 (Ariz. Ct. App. 1982) 22 (“A line of demarcation should be drawn between conduct likely to cause mere ‘emotional 23 distress’ and that causing ‘severe emotional distress.” (citation modified)). Neither 24 physical injury nor a disabling response is required to constitute “severe emotional 25 distress.” Skousen v. Nidy, 367 P.2d 248, 250 (Ariz. 1961). 26 The Complaint states that Defendants “caused Plaintiff to suffer severe emotional 27 distress.” (Compl. ¶ 33.) It is only in Plaintiff’s Response to the instant Motion that she 28 contends Defendants acts caused her anxiety, panic attacks, and a miscarriage. (Doc. 15 1 at 16.) Allegations of anxiety, panic attacks, and miscarriage may support a claim for IIED. 2 See, e.g., Nees v. City of Phoenix, 2022 WL 17976322, at *5 (D. Ariz. Dec. 28, 2022) 3 (finding allegations of PTSD, anxiety, nervousness, and depression sufficient to state an 4 IIED claim); Pankratz v. Willis, 744 P.2d 1182, 1186–87, 1190–91 (Ariz. Ct. App. 1987) 5 (depression, headaches, hemorrhoids, and anger sufficient to state an IIED claim). 6 Construing Plaintiff’s Complaint liberally and considering her Response brief, she has 7 alleged enough to state the element of severe emotional harm. Erickson, 551 U.S. at 94. 8 As it stands, Plaintiff has stated a claim for relief for IIED against Levin but has 9 failed to state an IIED claim against Hall or Safeguard. 10 2. Negligence 11 “To establish a claim for negligence, a plaintiff must prove four elements: (1) a duty 12 requiring the defendant to conform to a certain standard of care; (2) a breach by the 13 defendant of that standard; (3) a causal connection between the defendant’s conduct and 14 the resulting injury; and (4) actual damages.” Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 15 2007). Whether a duty exists is a matter of law and “[t]he other elements, including breach 16 and causation, are factual issues usually decided by the jury.” Id. 17 As an initial matter, Defendants contend that any compensation Plaintiff seeks is 18 barred by Arizona’s workers compensation statute. (Doc. 11 at 13.) That statute provides: 19 “The right to recover compensation pursuant to this chapter for injuries sustained by an 20 employee . . . is the exclusive remedy against the employer or any co-employee acting in 21 the scope of his employment.” Ariz. Rev. Stat. § 23-1022(A); see also Gamez v. Brush 22 Wellman, Inc., 34 P.3d 375, 379 (Ariz. Ct. App. 2001). Several cases explain that 23 negligence claims seeking compensation for workplace injuries are barred. See, e.g., 24 Gamez, 34 P.3d at 379; Anderson v. Indus. Comm’n, 711 P.2d 595 (1985); but see Ariz. 25 Const. art. XVIII, § 8 (allowing an employee to sue for injuries caused by employer’s 26 willful misconduct). 27 The Court agrees with Defendants that if Plaintiff’s claim seeks such relief—bar 28 sufficiently alleging willful misconduct—it is incurably infirm. The problem here, 1 however, is that Plaintiff’s factual allegations are so bare that the Court is not sure what 2 type of negligence claim Plaintiff is pursuing. Put simply, Plaintiff fails to sufficiently 3 allege any element of her negligence claim. Regarding duty, Plaintiff contends that 4 “Defendant[s] owed a duty of care created by common law special relationships and 5 relationships created by statute and public policy.” (Compl. ¶ 20.) As to breach, causation, 6 and damages, Plaintiff alleges that “[a]s a direct and proximate result of some or all o the 7 Defendant’s individual negligence as aforesaid, Plaintiff has suffered general and special 8 damage for which some or all the Defendants are responsible.” (Id. ¶ 52.) It is beyond 9 dispute that Rule 8 “demands more than an unadorned, the defendant-unlawfully-harmed- 10 me accusation.” Iqbal, 556 U.S. at 678. Giving Plaintiff the benefit of the doubt, the Court 11 will dismiss the negligence claim with leave to amend. 12 IV. LEAVE TO AMEND 13 “[A] district court should grant leave to amend even if no request to amend the 14 pleading was made, unless it determines that the pleading could not possibly be cured by 15 the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (cleaned 16 up). The Court will afford Plaintiff leave to amend the Title VII claim related to 17 discrimination and harassment, the IIED claim, and the negligence claim. Within thirty 18 (30) days from the date of entry of this Order, Plaintiff may submit an amended complaint. 19 Plaintiff is warned, however, that if her amended pleaded fails to state a claim under Title 20 VII, she will have failed to present a federal question for this Court’s review. See 28 U.S.C. 21 § 1331. If Plaintiff fails to establish federal question jurisdiction, the Court will lack 22 jurisdiction over her state law claims, as all parties are citizens of Arizona and the amount 23 in controversy, as alleged, does not exceed the required threshold amount. 28 U.S.C. 24 § 1332. Plaintiff’s Amended Complaint must address the deficiencies identified above and 25 should follow the form detailed in Rule 7.1 of the Local Rules of Civil Procedure. Plaintiff 26 must clearly designate on the face of the document that it is the “First Amended 27 Complaint.” The amended complaint must be retyped or rewritten in its entirety and may 28 not incorporate any part of the original Complaint by reference. 1 The Court draws attention to the District of Arizona’s Federal Court Advice Only Clinic, Federal Court Advice Only Clinic - Phoenix | District of Arizona | United States || District Court (uscourts.gov). The Court also notes the E-Pro Se program which assists 4|| litigants with creating a complaint form, Welcome - eProSe (uscourts.gov). Lastly, the || Court advises Plaintiff that certain resources for self-represented parties, including a 6|| handbook and the Local Rules, are available on the Court’s website, www.azd.uscourts.gov, by following the link “For Those Proceeding Without an 8 || Attorney.” 9|| V. CONCLUSION 10 Accordingly, 11 IT IS HEREBY ORDERED granting in part Defendants’ Motion to Dismiss (Doc. 11). The Court will dismiss Plaintiffs Title VII and negligence claims without 13} prejudice. Further, the Court will dismiss the ITED claim against Hall and Safeguard without prejudice. The Court will dismiss the claims under the ADA, FWHFA, and ACRA 15 || with prejudice. Defendants’ Motion is denied with respect to the TED claim against Levin. 16 IT IS FURTHER ORDERED granting Plaintiff leave to amend her Complaint. If Plaintiff wishes, she may file a First Amended Complaint no later than thirty (30) days after the date of issuance of this Order. 19 Dated this 2nd day of September, 2025. 20 Se . ~P 21 SO 9 Alonorable Susan V [. Brnovich United States District Judge 23 24 25 26 27 28
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