G. MURRAY SNOW, District Judge.
Pending before the Court is Defendant City of Phoenix's Motion to Dismiss (Doc. 13.) For the following reasons, the motion is granted.
This case arises out of Plaintiff's employment with the City of Phoenix ("City"). (Doc. 11 ¶¶ 11-12.) Plaintiff was hired as a patrol officer with the City of Phoenix Police Department ("Department") in 1989 and assigned to the Robbery Unit as a detective in 1998. ( Id. ) He alleges that he was subjected to race-based discrimination and retaliation by members of the Department beginning in 2009 through December 2011. ( Id. ¶¶ 13, 33.) Plaintiff alleges that he has experienced unfair and inconsistent treatment compared to Department employees who are not African-American. (Doc. 11 ¶¶ 40-48.) He alleges that his work has been subject to unjustified intensive scrutiny compared to these other employees. ( Id. ¶ 47.) Plaintiff further alleges that he was retaliated against for reporting this discrimination and filing complaints with both the City's Equal Opportunity Department ("EOD") and with the EEOC. ( Id. ¶¶ 47, 49-55.) In his Amended Complaint, Plaintiff seeks compensatory damages and injunctive relief. ( Id. at 11.) Plaintiff filed the present action on March 15, 2013 (Doc. 1) and filed his First Amended Complaint on June 5, 2013 (Doc. 11).
Defendant now moves to dismiss the action because (1) nearly all of Plaintiff's claims are barred by res judicata because Plaintiff previously brought nearly identical claims against the City in both state and federal court and (2) because Plaintiff's only possible claim not barred by res judicata does not rise to the level of an adverse employment action under Title VII. (Doc. 13.)
I. Res Judicata
Rule 8(c) of the Federal Rules of Civil Procedure denotes res judicata as an affirmative defense. Ordinarily, affirmative defenses may not be raised in a motion to dismiss. Res judicata, however, may be asserted in a motion to dismiss so long as it does not raise any disputed issues of fact. Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984). The City bases its res judicata argument on Plaintiff's First Amended Complaint in this case (Doc. 11), the complaint in case number 2:11-CV-00410-ROS, and the Order granting Defendants' Motion to Dismiss in that case. Thus, the City's res judicata argument does not present any disputed issues of fact, and consideration of it on a motion to dismiss is appropriate.
In October 2010, Plaintiff brought an essentially identical case against the City under the Arizona Civil Rights Act ("ACRA") in Maricopa County Superior Court, also alleging race-based employment discrimination beginning in 2009. (Doc. 13, Ex. B.) That suit contained two ACRA claims: 1) race-based discrimination and 2) retaliation for reporting that discrimination. Plaintiff's state case did not assert any claims under Title VII. On January 13, 2011, Plaintiff's claims against the City were dismissed with prejudice because of his failure to serve the statutorily mandated Notice of Claim. (Doc. 13, Ex. A.)
In March 2011, Plaintiff brought an essentially identical case against the City in federal court, alleging both race discrimination and retaliation under Title VII. Complaint, Yahweh v. City of Phoenix, No. CV-11-410-ROS (D. Ariz. March 3, 2011) (Doc. 1); First Amended Complaint, Yahweh v. City of Phoenix, No. CV-11-410-ROS (D. Ariz. June 22, 2011) (Doc. 6). In November 2011, Judge Silver granted a motion to dismiss filed by the City against Plaintiff. See Yahweh v. City of Phoenix, No. CV-11-410-ROS (D. Ariz. Nov. 9, 2011) (Doc. 24); (Doc. 13, Ex. B). Judge Silver noted that Plaintiff's federal case was nearly identical to his earlier state case, apart from asserting his two claims under Title VII instead of the ACRA. As the case involved the preclusive effect of an Arizona state court judgment on a later federal action, Judge Silver applied Arizona's doctrine of claim preclusion and concluded that Plaintiff's federal suit was barred by his earlier state suit. (Doc. 13, Ex. B at 2.) She noted that the cases were between the same parties, involved the same claim, and that the first case resulted in a judgment on the merits. ( Id. at 3-5.) Accordingly, Judge Silver dismissed the claims with prejudice. ( Id. at 5-6.)
Plaintiff filed the present case, his second federal suit, in this Court on March 15, 2013. (Doc. 1.) As in his first two suits, Plaintiff alleges both race-based discrimination and retaliation, occurring between 2009 and 2011 during his employment with the Phoenix Police Department. As in his first federal suit, Plaintiff brings these claims under Title VII. Because Plaintiff asserts that this Court has federal question jurisdiction under 28 U.S.C. § 1331, the federal law of res judicata governs the City's defense. "Res judicata is applicable whenever there is (1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties." Stratosphere Litig. L.L.C. v. Grand Casinos, Inc., 298 F.3d 1137, 1143 n.3 (9th Cir. 2002) (citing Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001)). Word-for-word similarity is not necessary to show identity of claims. "Res judicata bars relitigation of all grounds of recovery that were asserted, or could have been asserted, in a previous action between the parties, where the previous action was resolved on the merits.... [T]he relevant inquiry is whether the [claims] could have been brought." United States ex rel. Barajas v. Northrop Corp., 147 F.3d 905, 909 (9th Cir. 1998).
For purposes of res judicata, most of the claims Plaintiff brings here are identical to those Judge Silver dismissed in November 2011. Plaintiff asserts that he now brings a number of different allegations, some of which occurred before his first federal case was dismissed and some of which occurred after, in December 2011. (Doc. 11 ¶¶ 30-35.) Plaintiff's allegations that occurred prior to the dismissal of his first federal action on November 10, 2011, fail to qualify as new claims for the purposes of res judicata. "[R]es judicata (or claim preclusion) bar(s) all grounds for recovery which could have been asserted, whether they were or not, in a prior suit between the same parties... on the same cause of action." Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir. 1998) (citation omitted). The Ninth Circuit examines four factors in determining whether a cause of action asserted in a prior action is the same as a cause of action asserted in the current action: "(1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts." In re Imperial Corp. of Am., 92 F.3d 1503, 1506 (9th Cir. 1996).
Each of these factors demonstrate that Plaintiff's earlier claims are the same as his current claims. Allowing Plaintiff to proceed in this action would destroy the City's right to finality from the prior judgment. Both suits involve evidence of alleged racially-motivated actions taken regarding Plaintiff and comments made to and about Plaintiff at the Phoenix Police Department between 2009 and 2011. The suits are both Title VII race discrimination and retaliation cases, arising from the same two year period of Plaintiff's employment at the Department. To the extent the complaints feature some different allegations of conduct that occurred prior to the dismissal of his first federal lawsuit, the differences between the complaints are not sufficient to constitute different claims under res judicata principles. Any difference qualifies as a "ground of recovery that... could have been asserted, " in the previous action. Barajas, 147 F.3d at 909.
The remaining elements of res judicata are also met. A Rule 12(b)(6) dismissal for failure to state a claim is a final judgment for purposes of res judicata. See Stewart v. U.S. Bancorp, 297 F.3d 953, 957 (9th Cir. 2002) ("[A] dismissal for failure to state a claim under Rule 12(b)(6) is a judgment on the merits to which res judicata applies.") Further, the parties in both actions are identical. As such, ...