McDonald v. White Cap LP

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Michael McDonald, No. CV-21-00737-PHX-GMS 10 Plaintiff, ORDER 11 v. 12 HD Supply, et al., 13 Defendants. [15] 16 Before the Court is HD Supply’s (“Defendant”) Motion to Dismiss Plaintiff’s First 17 Amended Complaint for Failure to State a Claim or, in the Alternative, for a More Definite 18 Statement (Doc. 15). For the following reasons, Defendant’s motion is granted, and 19 Plaintiff’s First Amended Complaint (Doc. 10) is dismissed with leave to amend. 20 BACKGROUND 21 Michael McDonald (“Plaintiff”) brings this action against Defendant, his former 22 employer, alleging that Defendant subjected him to discrimination based on his age and 23 disability, harassed him, retaliated against him, and wrongfully terminated him. 24 (Doc. 10 ¶ 1.) Plaintiff, an Arizona resident, began working for Defendant in 2012 as a 25 laborer. (Doc. 10 ¶ 14.) While his performance was allegedly satisfactory for most of his 26 tenure, his relationship with Defendant began to deteriorate after he took two months of 27 FMLA leave in April 2019 for a “complex orthopedic surgery.” (Doc. 10 ¶¶ 16–17.) After 28 his leave expired, Plaintiff returned to work in June 2019 “with an approved set of 1 restrictions which Defendant[] understood required light duty.” (Doc. 10 ¶ 18.) Plaintiff 2 alleges that even though Defendant accepted his restrictions, he was harassed because of 3 them and told to perform work that would exceed his restrictions or face termination. 4 (Doc. 10 ¶ 19.) Plaintiff then took another FMLA leave in October 2019, following an 5 automobile accident. (Doc. 10 ¶ 21–22.) His physicians approved his return to work with 6 “minimal restrictions,” but Defendant allegedly again “refused to accept” the restrictions. 7 (Doc. 10 ¶ 23–25.) As before, Defendant allegedly threatened termination if Plaintiff did 8 not fully perform his duties. (Doc. 10 ¶ 26.) 9 Additionally, Plaintiff allegedly faced a variety of discriminatory conduct between 10 June 2019 and February 2020. (Doc. 10 ¶ 30.) In particular, he claims discrimination 11 because Defendant (1) refused to abide by Plaintiff’s light duty restriction, (2) “[denied] 12 Plaintiff’s FMLA rights,” (3) permitted employees to make a variety of age-based 13 comments, including calling Plaintiff “Old McDonald” and “Old Man McDonald,” and (4) 14 assigned Plaintiff a series of menial janitorial tasks “when Defendant[] had a janitorial crew 15 to do that work.” (Doc. 10 ¶ 30.) Plaintiff further alleges that the “employee handbook 16 indicates that neither age nor disability discrimination was permitted,” and that he 17 “repeatedly complained to Defendant[] that he was subject to discrimination but nothing 18 was done to alleviate the situation.” (Doc. 10 ¶¶ 31–32.) Due to this “pattern of warnings, 19 discipline and pressure,” Plaintiff allegedly suffered “severe emotional distress.” (Doc. 10 20 ¶ 33.) 21 Plaintiff was ultimately terminated around February 5, 2020. (Doc. 10 ¶ 28.) 22 Defendant allegedly informed Plaintiff that he was terminated because he had been 23 smoking on a forklift, but Plaintiff claims to have been off duty on the day he was accused 24 of the conduct in question. (Doc. 10 ¶¶ 28–29.) Plaintiff now brings the present action, 25 removed from Maricopa County Superior Court, seeking damages against Defendant. 26 DISCUSSION 27 I. Legal Standard 28 Federal Rule of Civil Procedure 8(a) requires a complaint to contain “a short and 1 plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 2 8(a), so that the defendant receives “fair notice of what the . . . claim is and the grounds 3 upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley 4 v. Gibson, 355 U.S. 41, 47 (1957)). To withstand a Rule 12(b)(6) motion to dismiss after 5 the Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Twombly, a 6 plaintiff’s factual allegations in the complaint “must . . . suggest that the claim has at least 7 a plausible chance of success.” Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014) 8 (quoting In re Century Aluminum Co. Sec. Litig., 729 F.3d 1104, 1107 (9th Cir. 2013)). 9 Factual allegations in the complaint are accepted as true and the pleading is construed “in 10 the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine 11 Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “allegations in a complaint ... may not 12 simply recite the elements of a cause of action [and] must contain sufficient allegations of 13 underlying facts to give fair notice and to enable the opposing party to defend itself 14 effectively.” Levitt, 7765 F.3d at 1135 (quoting Eclectic Props. E., LLC v. Marcus & 15 Millichap Co., 751 F.3d 990, 996 (9th Cir. 2014)). Further, legal conclusions couched as 16 factual allegations are not given a presumption of truthfulness, and “conclusory allegations 17 of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto 18 v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998). 19 II. Analysis 20 A. Counts One through Four 21 The first four counts of Plaintiff’s First Amended Complaint all suffer from the same 22 fatal defect: they do not identify the legal basis for the relief Plaintiff seeks, and thus fail 23 to satisfy the notice pleading requirements of Rule 8. In Count One, Plaintiff seeks to 24 recover for “Age Discrimination,” but does not identify any specific basis in common law 25 or statute under which he seeks to recover. (Doc. 10 at 5.) So too for Count Two 26 (“Disability Discrimination”), Count Three (“Harassment Based upon Age and Disability 27 Discrimination”), and Count Four (“Retaliation Based Upon Age and Disability 28 Discrimination”). (Doc. 10 at 7–9.) Because Plaintiff does not identify the basis for 1 liability under each count, or even whether each count is premised on a violation of federal 2 or state law, he has not sufficiently put Defendant on “fair notice of the claim asserted and 3 the ground on which it rests.”1 Rosal v. First Fed. Bank of Cal., 671 F. Supp. 2d 1111 , 4 1125 (N.D. Cal. 2009); Ferrantino v. Yolo Cnty. Transp. Dist., No. 14-cv-2590 JAM DAD 5 PS, 2015 WL 2017442 , at *3 (E.D. Cal. May 1, 2015) (finding plaintiff’s request that his 6 complaint be heard “in light of federal statutes prohibiting discrimination and section 504 7 of the Social Security Act” insufficient because it did not identify the basis for liability for 8 each claim). To the extent Plaintiff wishes to use the same factual predicates as bases for 9 liability under multiple theories, each theory should be pleaded as a separate count. 10 Therefore, Counts One through Four of Plaintiff’s First Amended Complaint are dismissed 11 for failure to state a claim upon which relief may be granted. 12 B. Count Five 13 In Count Five, Plaintiff seeks to recover against Defendant on a theory of “Public 14 Policy Wrongful Termination.” (Doc. 1 at 10.) Defendant argues that even if this claim 15 were construed to be made under the Arizona Employment Protection Act (“AEPA”), Ariz. 16 Rev. Stat. § 23-1501, Count Five still fails to state a claim for relief. (Doc. 15 at 7–8.) In 17 response, Plaintiff claims that Count Five—like the other counts in this complaint— 18 invokes not only the AEPA, but also a common law wrongful termination tort and “other 19 1 In Paragraph Seven of his complaint, Plaintiff notes that 20 [a]ll the within claims are brought pursuant to the applicable labor and discrimination laws in the state of Arizona, as well 21 as appliable Federal Employment Discrimination laws, related to claims of age and disability discrimination, as well as 22 harassment and retaliation based upon age and disability discrimination, namely, The Age Discrimination in Employ23 ment Act, 29 U.S.C. § 621 et seq, The Americans with Disabilities Act 42 U.S.C. § 12101 (a)(8), 42 U.S.C. 24 § 12112(a), The Family and Medical Leave Act, 29 U.S.C. § 2601 , 29 U.S.C. § 2612 (a)(1), 29 U.S.C. § 2614 (a)(1), 29 25 U.S.C. § 2615 , 29 U.S.C. § 2617 , and The Arizona Employment Protection Act A.R.S. § 23-1501, and any other 26 specific State or Federal laws which may become relevant as the case progresses. [27] (Doc. 10 ¶ 7.) This blanket invocation of statutory authority is likewise insufficient to meet 28 Rule 8’s notice pleading standards, as it does not identify the violation of law that Plaintiff alleges give rise to liability under each specific count. 1 statutes [that] may apply.” (Doc. 16 at 4.) Count Five as currently pled, like Counts One 2 through Four, does not provide notice to Defendant of any of these purported alternative 3 bases for liability and thus is insufficient under Rule 8’s notice pleading requirements. 4 However, as both parties also analyze Count Five under Ariz. Rev. Stat. § 23 - 5 1501(A)(3)(c)(ii), the Court does so as well. In pertinent part, the statute states: 6 3. An employee has a claim against an employer for termination of employment only if one or more of the 7 following circumstances have occurred: . . . 8 (c) The employer has terminated the employment relationship of an employee in retaliation for any of the 9 following: . . . 10 (ii) The disclosure by the employee in a reasonable manner that the employee has 11 information or a reasonable belief that the employer, or an employee of the employer, has 12 violated, is violating or will violate the Constitution of Arizona or the statutes of this 13 state to either the employer or a representative of the employer who the employee reasonably 14 believes is in a managerial or supervisory position and has the authority to investigate the 15 information provided by the employee and to take action to prevent further violations of the 16 Constitution of Arizona or statutes of this state or an employee of a public body or political 17 subdivision of this state or any agency of a public body or political subdivision. [19] Ariz. Rev. Stat. § 23-1501 (A)(3)(c)(ii). 20 Count Five fails to state a claim under § 23-1501(A)(3)(c)(ii) because Plaintiff does 21 not allege that he had a reasonable belief that his employer “has violated, is violating or 22 will violate the Constitution of Arizona or the statutes of this state.” Id. Plaintiff alleges 23 that he “repeatedly complained to Defendant[] that he was subject to discrimination but 24 nothing was done to alleviate the situation,” and the continued emotional distress caused 25 by Defendant’s “warnings, discipline and pressure” resulted in Plaintiff’s termination. 26 (Doc. 10 ¶¶ 32–33.) Plaintiff also alleges that “the fundamental public policy against 27 discrimination in the workplace was, and is, set forth in Arizona law, and includes 28 discrimination based upon age and disability and as well as retaliation and harassment 1 based upon said discrimination.” (Doc. 10 ¶ 67.) 2 However, Plaintiff does not identify the Arizona statute or constitutional provision 3 that he believed Defendant or its employees were violating. A “bare legal conclusion that 4 Defendant” had violated “some unreferenced statute or constitutional provision . . . is 5 insufficient to survive dismissal” because it does not allow the Court to evaluate whether 6 Plaintiff’s belief was reasonable or put Defendant on notice “of what law or laws it 7 allegedly violated, was violating, or was about to violate.” Painter v. Katerra Inc., No. 8 CV-21-308-PHX-SRB, 2021 WL 2589736 , at *4 (D. Ariz. Apr. 5, 2021). 9 Nor does Plaintiff’s invocation of a raft of federal statutes suffice to state a claim 10 under the AEPA. (Doc. 10 ¶ 7.) The AEPA expressly requires an allegation that the 11 employee believed the violation at issue was of “the Constitution of Arizona or the statutes 12 of this state.” Ariz. Rev. Stat. § 23-1501 (A)(3)(c)(ii). The statute’s limiting language leads 13 to the corollary that reporting violations of federal law is not protected under the AEPA. 14 See Galati v. Am. W. Airlines, Inc., 205 Ariz. 290, 293 , 69 P.3d 1011, 1014 (Ct. App. 2003) 15 (finding no protection under AEPA for individual terminated after reporting violations of 16 federal regulations); Hinton-McIntyre v. N. Cochise Cmty. Hosp., Inc., No. CV-15-0003417 TUC-CRP, 2015 WL 13767537 , at *5 (D. Ariz. Aug. 6, 2015). Therefore, Count Five is 18 dismissed for failure to state a claim upon which relief could be granted. 19 C. Leave to Amend 20 When a court grants a Rule 12(b)(6) motion to dismiss, but a defective complaint 21 can be cured, a plaintiff is ordinarily entitled to amend the complaint before the action is 22 dismissed. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); see also Fed. R. Civ. P. 23 15(a) (“The court should freely give leave [to amend] when justice so requires.”). Rule 24 15’s policy favoring amendment “should be applied with extreme liberality.” DCD 25 Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). Leave to amend should be 26 withheld, however, if “amendment: (1) prejudices the opposing party; (2) is sought in bad 27 faith; (3) produces an undue delay in litigation; or (4) is futile.” AmerisourceBergen Corp. 28 v. Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 2006). 1 Here, while the Court agrees that the First Amended Complaint is deficient, it grants 2|| leave to amend to allow Plaintiff the opportunity to cure the deficiencies identified in this order. Defendant’s argument that leave should be dented is undercut by Plaintiff arguing in his Response that he is willing to amend his complaint to provide more specificity.’ 5|| (Doc. 15 at 6); (Doc. 16 at 6.) Therefore, it appears that amendment 1s not facially futile. || Should Plaintiff wish to file a Second Amended Complaint, it must be filed within thirty 7\|| days of the date of this order. 8 CONCLUSION 9 The Court grants Defendant’s Motion. Plaintiff did not sufficiently plead Counts 10 || One through Five of the First Amended Complaint. The Court grants Plaintiff leave to file |} aSecond Amended Complaint. 12 IT IS ORDERED that Defendant’s Motion to Dismiss Plaintiff's First Amended 13 |} Complaint for Failure to State a Claim or, in the Alternative, for a More Definite Statement (Doc. 15) is GRANTED. 15 IT IS FURTHER ORDERED granting Plaintiff leave to amend his First Amended || Complaint. Plaintiff will have thirty days from the date of this order to file a Second || Amended Complaint. 18 IT IS FURTHER ORDERED that if Plaintiff fails to file a Second Amended 19 || Complaint within thirty days from the date of this order, the Clerk of Court must, without further notice, enter judgment of dismissal of this action with prejudice on or after April 15, 2022. 22 Dated this 16th day of March, 2022. [23] A Whacrsay Sooo) Whicren 25 Chief United States District Judge [27] □□ 2 The Court will not discuss the merits of Plaintiff's proposed Second Amended Complaint at this time. -7-