Villalobos v. Merrill Lynch

• Court: District Court, D. Arizona
• Decided: October 24, 2024
• Docket: 2:24-cv-02139
• Status: Unknown

Opinion

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

9 Jesenia Villalobos, No. CV-24-02139-PHX-JJT

10 Plaintiff, ORDER

11 v.

12 Merrill Lynch,

13 Defendant. 14 15 At issue is Defendant Merrill Lynch’s Amended Motion to Dismiss with Prejudice 16 (Doc. 8, MTD), to which pro se Plaintiff Jesenia Villalobos filed a Response (Doc. 13, 17 Response) and Defendant filed a Reply (Doc. 21, Reply). Plaintiff has also filed a Sur- 18 Reply (Doc. 25, Sur-Reply) and a separate Motion for Settlement Conference (Doc. 28). 19 The Court finds these matters appropriate for resolution without oral argument. See LRCiv 20 7.2(f). For the reasons set forth below, the Court grants Defendant’s Motion to Dismiss 21 with Prejudice and denies as moot Plaintiff’s Motion for Settlement Conference. 22 I. Background 23 On July 9, 2024, Plaintiff initiated this action in state court, wherein she filed a 24 complaint alleging workplace harassment and employment discrimination. (Doc. 1-1 at 25 4–5.) On August 21, 2024, Defendant removed this case to federal court based upon federal 26 question jurisdiction.1 (Doc. 1 ¶ 8.) Although Plaintiff’s complaint does not identify a

27 1 Plaintiff never properly served a complaint on Defendant. (Doc. 1 ¶¶ 2–3, 6.) Although Defendant does not argue insufficient service of process as a defense in its MTD, 28 Defendant does note that Plaintiff’s defective service rendered the August 21 removal timely. (Doc. 1 ¶ 11.) The Court perceives no issue with Defendant’s assertion. 1 specific cause of action, removal was proper because supporting documentation submitted 2 by Plaintiff with her complaint indicates that her claim arises under federal law. See 28 3 U.S.C. § 1446(b)(3) (permitting consideration of “other paper[s]” in the assessment of 4 subject matter jurisdiction). Specifically, Plaintiff filed a Determination and Notice of 5 Rights from the federal EEOC indicating that Plaintiff had a right to pursue this lawsuit 6 under federal law. (Doc. 1-1 at 13.) Defendant reasonably surmised that Plaintiff’s claim 7 is based in Title VII, and Plaintiff has since confirmed that conclusion. (See Response at 4 8 (stating that Plaintiff’s claim arises under Title VII of the Civil Rights Act of 1964).) 9 Therefore, the Court is satisfied that it has jurisdiction over this case. 10 Plaintiff is apparently an employee of Defendant. Her complaint alleges that, over 11 the course of eight days, a coworker named Jonathon approached her four times. (Doc. 1-1 12 at 10.) The first time, Jonathan told Plaintiff that she was “beautiful.” The second time, he 13 introduced himself, asked for her phone number, and asked if she was married. The third 14 time, he told her that she was “really attractive” and asked for her number again. The fourth 15 time, he approached her desk, but Plaintiff does not allege what he said, if anything. 16 (Doc. 1-1 at 10.) Plaintiff reported Jonathon’s conduct to two of her managers but feels 17 that Defendant has not taken the matter seriously, especially considering that she has 18 allegedly been subjected to sexual harassment in the past. (Doc. 1-1 at 10–11.) Plaintiff 19 claims that she has experienced emotional distress, anxiety, worry, and fear, and she 20 requests $295,000 in compensatory damages. (Doc. 1-1 at 11–12.) Plaintiff seeks relief in 21 this lawsuit only from Defendant, not from Jonathon. Defendant has moved the Court to 22 dismiss Plaintiff’s complaint with prejudice under Federal Rule of Civil Procedure 23 12(b)(6). 24 II. Legal Standard 25 Rule 12(b)(6) is designed to “test[] the legal sufficiency of a claim.” Navarro v. 26 Block, 250 F.3d 729, 732 (9th Cir. 2001). A dismissal under Rule 12(b)(6) for failure to 27 state a claim can be based on either: (1) the lack of a cognizable legal theory; or (2) the 28 absence of sufficient factual allegations to support a cognizable legal theory. Balistreri v. 1 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). When analyzing a complaint for 2 failure to state a claim, the well-pled factual allegations are taken as true and construed in 3 the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 4 (9th Cir. 2009). A plaintiff must allege “enough facts to state a claim to relief that is 5 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has 6 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 7 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 8 Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility 9 standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer 10 possibility that a defendant has acted unlawfully.” Id. 11 “While a complaint attacked by a Rule 12(b)(6) motion does not need detailed 12 factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief 13 requires more than labels and conclusions, and a formulaic recitation of the elements of a 14 cause of action will not do.” Twombly, 550 U.S. at 555 (cleaned up and citations omitted). 15 Legal conclusions couched as factual allegations are not entitled to the assumption of truth 16 and therefore are insufficient to defeat a motion to dismiss for failure to state a claim. Iqbal, 17 556 U.S. at 679–80. However, “a well-pleaded complaint may proceed even if it strikes a 18 savvy judge that actual proof of those facts is improbable, and that ‘recovery is very remote 19 and unlikely.’” Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 20 (1974)). 21 III. Analysis 22 As noted above, Plaintiff’s complaint does not identify a cause of action. The “law” 23 section of her complaint form is completely blank. (Doc. 1-1 at 11.) In her Response, she 24 submits supporting documentation indicating that she intended to sue Defendant for sex 25 discrimination under Title VII. (Response at 4.) Defendant characterizes Plaintiff’s 26 pleading as an assertion that Defendant created a hostile work environment. This 27 characterization is consistent with Plaintiff’s claim of sex discrimination, as a hostile work 28 environment arising out of sexual harassment is a form of sex discrimination. See Fried v. 1 Wynn Las Vegas, LLC, 18 F.4th 643, 647 (9th Cir. 2021). The Court concurs with 2 Defendant that Plaintiff’s complaint ought to be analyzed under the law governing hostile 3 work environments, as the complaint’s allegations could not support any other claim 4 against Defendant. 5 In order to establish the existence of a hostile work environment, Plaintiff must 6 show that “(1) [she] was subjected to verbal or physical conduct of a sexual nature; (2) the 7 conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter 8 the conditions of employment and create an abusive working environment.” Id. “[I]t is 9 well established that an employer can create a hostile work environment by failing to take 10 immediate and corrective action in response to a coworker's or third party's sexual 11 harassment or racial discrimination the employer knew or should have known about.” Id. 12 Plaintiff has failed to state a viable claim against Defendant for two reasons. First, 13 Plaintiff has failed to show that she was subjected to conduct that could create a hostile 14 work environment. Second, even if she could demonstrate the existence of a hostile work 15 environment, she has failed to allege that Defendant violated the law by not taking 16 appropriate corrective action. 17 1. Hostile Work Environment 18 “Courts are to determine whether an environment is sufficiently hostile or abusive 19 by looking at all the circumstances, including the frequency of the discriminatory conduct; 20 its severity; whether it is physically threatening or humiliating, or a mere offensive 21 utterance; and whether it unreasonably interferes with an employee’s work performance.” 22 Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1110 (9th Cir. 2000) (citation and internal 23 quotations marks omitted). “[T]he required showing of severity or seriousness of the 24 harassing conduct varies inversely with the pervasiveness or frequency of the conduct.” 25 Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991). In this case, the conduct complained 26 of by Plaintiff was neither pervasive nor severe. 27 Jonathon allegedly propositioned Plaintiff four times in eight days, which is quite 28 frequent, but Plaintiff does not allege that he spoke to her either before or after that eight- 1 day period. Notably, the last interaction between Jonathon and Plaintiff occurred on 2 May 14, but Plaintiff did not file her complaint until July 9. Based upon the face of the 3 pleading, it appears that Jonathon developed a romantic interest in Plaintiff, pursued that 4 interest for eight days, and then gave up. Although the conduct suffered by Plaintiff could 5 be considered pervasive if viewed through an artificially narrow window, the conduct was 6 not pervasive when viewed in the context of Plaintiff’s overall employment relationship, 7 which is the appropriate frame of reference for a claim of hostile work environment. 8 However, even if the Court were to assume arguendo that the complained-of conduct was 9 pervasive, it was so lacking in severity that under no circumstances could it satisfy the 10 Ninth Circuit’s sliding scale. 11 The “standards for judging hostility are sufficiently demanding to ensure that Title 12 VII does not become a ‘general civility code.’” Faragher v. City of Boca Raton, 524 U.S. 13 775, 788 (1998) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 14 (1998)). Plaintiff alleges that Jonathon told her she was pretty twice, asked for her number 15 twice, asked if she was married once, and approached her desk once. If the Court were to 16 conclude that those allegations state a prima facie claim of harassment, the Court would in 17 effect proscribe a person from asking a coworker on a date. The Court does not express an 18 opinion regarding whether a general prohibition on romantic expression in the workplace 19 would be a good or a bad idea, but it is clearly not the law. There is no way to credit 20 Plaintiff’s claim without transmuting Title VII into a code of general civility. 21 The upshot of that conclusion is that Plaintiff has failed to show that there was any 22 underlying harassment that Defendant bore a legal obligation to address. The Ninth Circuit 23 has “recognized that an employer’s response to a third party’s unwelcome sexual advances 24 toward an employee can independently create a hostile work environment.” Fried, 18 F.4th 25 at 650 (emphasis in original). However, in Fried and all the cases cited therein, there was 26 some sexual impropriety that undergirded the courts’ analyses of the sufficiency of the 27 employers’ responses. In Fried, a third-party customer asked the plaintiff if he “wanted to 28 have sex and rub the customer’s penis” and stated that “it is wonderful to have sex with 1 another man.” Id. at 646 (cleaned up). In Brooks v. City of San Mateo, 229 F.3d 917, 2 921–22 (9th Cir. 2000), a serial sexual harasser in the workplace “placed his hand on [the 3 plaintiff’s] stomach and commented on its softness and sexiness” and then “forced his hand 4 underneath her sweater and bra to fondle her bare breast.” In Little v. Windermere 5 Relocation, Inc., 301 F.3d 958, 964 (9th Cir. 2002), the plaintiff was “raped” three times 6 by a third-party business associate. In Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1067 7 (10th Cir. 1998), two third-party customers told the Plaintiff that “[they] would like to get 8 in her pants,” grabbed her hair several times, grabbed her breast, and placed their mouths 9 on her breast. 10 The Court concludes from these cases that, before an employer can be found liable 11 for failing to appropriately respond to an employee’s or a third party’s sexual harassment, 12 there first must be an occurrence of sexual harassment. In this case, Jonathon’s advances 13 were so lacking in severity that the Court is unsure what response Plaintiff expected or the 14 law demanded. Of course, an employer must handle all allegations of sexual harassment 15 with respect. Receipt of a meritless complaint does not constitute a license to demean or 16 abuse the complainant. A hostile response to even a meritless complaint could itself create 17 a hostile work environment. Here, however, there is no allegation that Defendant responded 18 inappropriately. Because Plaintiff has not demonstrated that there was any sexual 19 impropriety in the first place, Defendant cannot be liable for failing to take the necessary 20 corrective action under Title VII. Plaintiff’s claim is therefore subject to dismissal. 21 2. Corrective Action 22 Even if the Court were to assume arguendo that Jonathon did sexually harass 23 Plaintiff, she has still failed to show that Defendant responded improperly. Plaintiff’s 24 complaint alleges nothing regarding Defendant’s conduct. The totality of the assertions 25 relating to Defendant are that “right after” Jonathon approached Plaintiff’s desk, she “made 26 [her] manager [sic] Stephen Thieren and Rosa G. Perez aware” and that “this matter is not 27 taken seriously.” (Doc. 1-1 at 10.) Plaintiff has not substantiated her allegation that 28 1 Defendant failed to take this matter seriously with a description of what Defendant or any 2 of its agents did or failed to do. 3 Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a short and 4 plain statement of the claim showing that the pleader is entitled to relief.” This requirement 5 ensures that “the allegations in the complaint ‘give the defendant fair notice of what the 6 plaintiff’s claim is and the grounds upon which it rests.’” Pickern v. Pier 1 Imports (U.S.), 7 Inc., 457 F.3d 963, 968 (9th Cir. 2006) (quoting Swierkiewicz v. Sorema N. A., 534 U.S. 8 506, 998 (2002)). Although pleading standards are “relaxed” as applied to pro se plaintiffs, 9 there is still a minimum descriptive threshold below which a complaint is invalid. See 10 McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 11 Plaintiff’s complaint falls far short of Rule 8(a)(2)’s requirement that a pleading 12 contain sufficient allegations to put Defendant on notice of what it is allegedly liable for. 13 The complaint contains adequate information to put a reader on notice as to Jonathon’s 14 alleged wrongdoing, but it contains virtually no allegations explaining why Plaintiff 15 believes Defendant is liable to her. Defendant has not been put on notice of what it is 16 expected to answer for. Plaintiff’s claim is therefore subject to dismissal on two 17 independent grounds. 18 IV. Leave to Amend 19 Defendant urges the Court to dismiss Plaintiff’s complaint with prejudice. (MTD at 20 9.) “Rule 15(a) declares that leave to amend shall be freely given when justice so requires.” 21 Foman v. Davis, 371 U.S. 178, 182 (1962) (citation and internal quotation marks omitted). 22 “In exercising its discretion with regard to the amendment of pleadings, a court must be 23 guided by the underlying purpose of Rule 15—to facilitate a decision on the merits rather 24 than on the pleadings or technicalities.” Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 25 1987) (citation and internal quotation marks omitted). However, the policy in favor of 26 allowing amendments is subject to limitations. After a defendant files a responsive pleading 27 or a motion under Rule 12(b), (e), or (f), the propriety of leave to amend is determined by 28 consideration of five factors: “bad faith, undue delay, prejudice to the opposing party, 1 futility of amendment, and whether the plaintiff has previously amended the complaint.” 2 United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011). 3 Futility alone can justify the denial of leave to amend. Nunes v. Ashcroft, 375 F.3d 4 805, 808 (9th Cir. 2003). “[A] district court should grant leave to amend even if no request 5 to amend the pleading was made, unless it determines that the pleading could not possibly 6 be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 7 2000) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). This is especially 8 true of pro se pleadings. In general, pro se litigants are “entitled to notice of the complaint’s 9 deficiencies and an opportunity to amend prior to dismissal of the action.” Lucas v. Dep't 10 of Corr., 66 F.3d 245, 248 (9th Cir. 1995). The Ninth Circuit is “very cautious in approving 11 a district court’s decision to deny pro se litigants leave to amend.” Flowers v. First 12 Hawaiian Bank, 295 F.3d 966, 977 (9th Cir. 2002). However, even pro se pleadings are 13 subject to dismissal without leave to amend where amendment would be futile. Id. The 14 Ninth Circuit has approved the dismissal of pro se pleadings without leave to amend. See, 15 e.g., McZeal v. JPMorgan Chase Bank, N.A., 735 F. App’x 913, 917 (9th Cir. 2018). 16 This case presents the rare circumstance where it is appropriate to dismiss a pro se 17 pleading without affording leave to amend. Plaintiff received notice of the deficiencies of 18 her complaint in the form of Defendant’s MTD. Instead of amending the complaint or 19 submitting a proper rebuttal to Defendant’s legal arguments, Plaintiff opted to submit a 20 “Response” that consisted entirely of additional factual information that she believed 21 buttressed her complaint.2 Plaintiff also received a second notice of the deficiencies of her 22 Complaint in the form of Defendant’s Reply. Once again, instead of amending the 23 complaint, Plaintiff filed a Sur-Reply consisting entirely of additional factual information, 24 some but not all of which was repetitious of her Response. Defendant has not moved to 25 strike Plaintiff’s Sur-Reply. The Court is thus in the unusual position of having 47 pages 26 2 Defendant argues that Plaintiff’s failure to substantively address the MTD 27 constitutes an independent basis for dismissal. (Reply at 2–4.) Because Plaintiff’s complaint is subject to dismissal in any event, the Court does not consider whether it would 28 be appropriate to deem Plaintiff’s unresponsiveness as tantamount to a dispositive concession. 1 of additional facts that Plaintiff believes saves her complaint from Defendant’s MTD. 2 Plaintiff’s Response and Sur-Reply are therefore, in essence, a proposed amendment in all 3 but name. Because Plaintiff’s Response and Sur-Reply do not salvage her complaint, the 4 Court concludes that amendment would be futile and that dismissal with prejudice is 5 appropriate. 6 Plaintiff’s Response and Sur-Reply shed additional light on Defendant’s reaction to 7 her allegations of sexual harassment. After Plaintiff decided to work from home to avoid 8 further interaction with Jonathon, she messaged her manager Stephen that she was having 9 trouble logging in to Defendant’s network. (Response at 8.) Stephen responded, “Ok so my 10 suggestion is to come in office so we can work to get back up and running tomorrow. Once 11 you can sign in you can head back home.” (Response at 8.) In Fried, Lockard, and other 12 similar cases, the employers were liable for creating a hostile work environment in large 13 part because they directed their employees to return to the situations that had given rise to 14 the complaint of sexual harassment in the first place. See Fried, 18 F.4th at 651–52 (citing 15 Lockard, 162 F.3d at 1067). Here, however, Plaintiff has demonstrated that Defendant did 16 not force her to return to a workplace environment in which she would likely encounter 17 Jonathon. Instead, Defendant allowed Plaintiff to work from home and facilitated her 18 transfer to a home office. Plaintiff has submitted evidence indicating that her other 19 manager, Rosa G. Perez, was also receptive to Plaintiff’s allegations of sexual harassment. 20 Rosa asked if Jonathon was a “black guy with dreads,” to which Plaintiff responded 21 affirmatively. (Response at 18.) Rosa then clarified that she was asking in order to identify 22 Jonathon to other employees of Defendant for the purpose of addressing Plaintiff’s 23 complaint. (Response at 19.) After Plaintiff again confirmed Jonathon’s physical 24 appearance, Rosa asked her “[c]omo estas,” which is a Spanish question expressing general 25 concern for an interlocutor’s well-being. (Response at 19.) Later, Plaintiff messaged Rosa 26 asking if Jonathon had come by her desk. (Response at 23.) Rosa responded that he had 27 not, and she followed up with the commiserative phrase, “[s]mh idk why guys don’t know 28 how to accept the word no.” (Response at 23.) Finally, Plaintiff submitted evidence of a 1 follow-up conversation with Stephen in which Stephen indicated that he had investigated 2 Jonathon’s identity and had taken steps to procure a new laptop for Plaintiff. (Sur-Reply at 3 8–9.) Plaintiff responded that Jonathon was no longer working for Defendant, to which 4 Stephen replied, “[w]ell that is good news [t]hat he is no longer with the firm . . . I am glad 5 you can get some relief and ease.” (Sur-Reply at 8.) Plaintiff’s Response and Sur-Reply 6 not only do not establish that Defendant failed to take appropriate corrective action 7 regarding Jonathon’s conduct, but instead indicate that Defendant reacted in a proper 8 manner. Both of Plaintiff’s managers were patient, understanding, and receptive to 9 Plaintiff’s allegations of sexual impropriety, and both managers conducted an investigation 10 into the affair and assisted Plaintiff in avoiding further contact with Jonathon. 11 Nothing in Plaintiff’s proffered evidence alleges anything further regarding 12 Jonathon’s behavior. Thus, it appears that the sum total of his conduct is what Plaintiff 13 alleged in her complaint: four overtures over the course of eight days, none of which were 14 sexually charged or objectively offensive, and none of which involved any physical 15 contact. The remainder of Plaintiff’s Response and Sur-Reply consist of impertinencies 16 and information regarding a prior allegation of sexual assault by a woman named Bianca 17 Acevedo, who allegedly worked for Defendant and spanked Plaintiff’s buttocks at a Costco 18 in November of 2023. (Response at 11–15, 17; Sur-Reply at 15, 17–20.) Plaintiff does not 19 allege in what way this incident relates to Defendant. 20 Plaintiff’s initial complaint failed to state a viable claim that Defendant is liable to 21 her for creating a hostile work environment. After receiving two notices of her complaint’s 22 deficiencies, Plaintiff submitted 47 pages of supporting material, much of it consisting of 23 new or additional facts. These facts demonstrate that Plaintiff’s claim is actually more 24 infirm than originally presented. It is clear from Plaintiff’s Response and Sur-Reply that 25 Defendant responded appropriately to Jonathon’s alleged sexual harassment. The Court is 26 satisfied that any amendment by Plaintiff in this case would be futile and would constitute 27 an unnecessary drain on both Defendant’s resources and the public fisc. Therefore, the 28 Court will dismiss Plaintiff’s complaint with prejudice. 1 IT IS THEREFORE ORDERED granting Defendant’s Amended Rule 12(b)(6) || Motion to Dismiss Complaint with Prejudice. (Doc. 8.) 3 IT IS FURTHER ORDERED denying as moot Plaintiff's Motion for Settlement 4|| Conference. (Doc. 28.) 5 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment for 6 || Defendant and close this case. 7 Dated this 24th day of October, 2024. CN

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