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McElmurry v. Arizona Department of Agriculture

United States District Court, Ninth Circuit

June 11, 2013

Barbara Joy McElmurry, Plaintiff,
Arizona Department of Agriculture, Defendant.


G. MURRAY SNOW, District Judge.

Defendant Arizona Department of Agriculture ("the Department") has moved to dismiss (Doc. 10) counts two and four of Plaintiff pro se Barbara Joy McElmurry's Amended Complaint (Doc. 7) under Rule 12(b)(6). For the reasons discussed below, the Court grants in part and denies in part the Department's Motion.


The Department hired McElmurry on February 1, 2010. (Doc. 7 at 3.) She worked at a lab in Yuma, Arizona, on the Department's efforts to combat the Asian citrus psyllid (ACP), a small insect. ( Id. ) Her job consisted of screening traps set by other employees in the field. ( Id. ) She worked with a team of other lab employees. ( Id. at 3-4.)

There were tensions between many of the employees at the Yuma lab. McElmurry attempted to raise health concerns with Jerry Reiffenberger, who oversaw the Yuma ACP program. ( Id. at 3, 6.) She informed Reiffenberger that another employee was developing carpal tunnel syndrome based on the repetitive nature of the trap screening process, and also raised issues with her supervisors about the poor quality of light in the facility. ( Id. at 6.) Reiffenberger took no corrective action, but did stroke McElmurry's arms and shoulders so she "would not get carpal tunnel syndrome." ( Id. ) Those who complained of health problems were sent to the field or fired, regardless of their physical condition and had their workman's compensation claims denied. ( Id. at 6-7.)

Mary Garman was eventually promoted to supervise McElmurry and the lab team. ( Id. at 5-7.) Garman often berated the lab employees for not taking her calls while the employees were at lunch. ( Id. at 7.) On several occasions, Garman accused McElmurry of making mistakes on her reports that turned out to be mistakes in Garman's own calculations. ( Id. at 8, 10.) On at least two occasions, Garman stroked McElmurry's arm, hugged her, or rested her head on McElmurry's head. ( Id. at 8, 11.) Garman committed similar acts of harassment and bullying during McElmurry's tenure, including not allowing anyone to talk, listen to the radio, or use the restroom in the building. ( Id. at 8-15.)

As tensions mounted between McElmurry, Garman, and other supervisors, Garman increased the screening quota from 105/150 to 250 traps. ( Id. at 12.) McElmurry objected to the change, citing concerns among the screeners about eye-strain, headaches, neck aches, and back aches. ( Id. ) Nevertheless, Garman pressed forward with the change and several employees, including McElmurry, suffered health problems. ( Id. at 12-13.) McElmurry informed Reiffenberger about the situation but he took no action. ( Id. at 13.) McElmurry stated her intent to file harassment charges against Garman. ( Id. )

Garman began telling McElmurry that she would be fired or demoted for her actions. ( Id. at 14.) McElmurry reached out to the Human Resources Department with little success. ( Id. ) After accusing McElmurry of sabotaging the screening results, Garman demoted McElmurry to field work, but McElmurry stated that she would be unable to drive the vehicles due to her small stature (her height is around 4'10''). ( Id. at 15-16.) Garman nevertheless forced McElmurry into field duty, where McElmurry suffered injury. ( Id. at 17.)

On December 1, 2010, McElmurry arrived at work and was fired. ( Id. at 18.) She was informed by Human Resources that "Arizona is [a] right to work state and they can fire you anytime they want without reason." ( Id. )

McElmurry filed a charge of employment discrimination with the Arizona Civil Rights Division on January 14, 2011. (Doc. 11, Ex. 2.)[2] She received a Notice of Right to Sue on October 5, 2011. ( Id. ) She also filed a charge with the EEOC, alleging violations of Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. ( Id., Ex. 1.) The EEOC issued a Dismissal and Notice of Rights on August 8, 2012. ( Id. ) McElmurry filed her Complaint on October 18, 2012. (Doc. 1.) That Complaint was initially screened and dismissed by the Court under Rule 8. (Doc. 6.) McElmurry then filed an Amended Complaint on November 19, 2012. (Doc. 7.) In her Amended Complaint, McElmurry asserts claims for retaliation, discrimination, harassment, and wrongful termination. ( Id. at 1.) The Department filed the instant Motion to Dismiss on February 1, 2013. (Doc. 10.)



To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must contain more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action"; it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While "a complaint need not contain detailed factual allegations... it must plead enough facts to state a claim to relief that is plausible on its face.'" Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). The plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Id. When a complaint does not "permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief." Id. at 679 (internal quotation omitted).

When analyzing a complaint for failure to state a claim under Rule 12(b)(6), "[a]ll allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party." Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). However, legal conclusions couched as factual allegations are not given a presumption of truthfulness, and "conclusory allegations of law and unwarranted ...

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