United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Defendant Falcon Air Express, Inc. has filed a motion to dismiss. Doc. 8. The motion is fully briefed and neither party has requested oral argument. The Court will grant the motion in part and deny it in part.
Plaintiff Lori Eichenberger alleges that she began working for Defendant on January 26, 2011 as a Flight Attendant based out of Mesa, Arizona. Doc. 1, ¶ 7. Cindy Nicholson was responsible for managing and supervising all flight attendants. Id., ¶ 11. Nicholson reported directly to Director of Operations Greg Vanek. Id., 12.
When she was hired in January 2011, Plaintiff's hourly wage was $21.85. Id., ¶ 14. In March 2011, Plaintiff was offered a Temporary Base Coordinator position that would require her to work from Atlantic City, New Jersey. Id., 15. Nicholson told Plaintiff that she would receive a pay increase to $26.35 per hour (Senior Pay) and an extra $500 per month, and would continue to receive Senior Pay after she returned to her regular position. Id.
Plaintiff alleges that during her time as Temporary Base Coordinator she spent approximately ten hours per month shuttling Defendant's employees for which she was never paid. Id., ¶ 16. In addition, Plaintiff alleges she did not receive Senior Pay for all of the hours she worked and did not receive the additional $500 per month. Id., ¶ 17.
In April 2011, Vanek allegedly took an interest in Plaintiff and began to harass her with inappropriate comments and sexual advances in person, over the phone, and via text message, such as "Oh my god you are so sexy" and "I want you." Id., ¶¶ 24-25, 28. Plaintiff alleges that he would appear at times when Plaintiff was likely to be working alone, and on at least five to ten occasions during the last six to nine months of Plaintiff's employment he would purposefully bump into Plaintiff, wrap his arms around her, and ask her to give him a kiss. Id., ¶ 27. Plaintiff claims that Vanek offered to fly Plaintiff to Miami so they could spend time together; he also offered to take her on vacation with him. Id, ¶¶ 29-30. Plaintiff flatly rebuffed all of Vanek's advances. Id., ¶ 31. In November 2011, Plaintiff learned that Vanek had told other employees that he wanted to have sex with her. Id., ¶ 33.
In November 2011, Plaintiff explained to Vanek that she was one of the more experienced flight attendants and that she wished to be scheduled to fly as a senior flight attendant. Id., 34. Vanek responded that if Plaintiff would have dinner with him, he would see what he could do. Id. On another occasion, Plaintiff mentioned to Vanek that she would be interested in a supervisory flight attendant position. Vanek responded: "Why would I give that to you, when you do not give me anything." Id., ¶ 35.
In December 2011, Plaintiff requested a leave of absence for medical reasons and was informed that she would need to submit paperwork from her medical provider to cover her medical leave and release to return to work. Id., ¶ 36. Plaintiff claims that she made multiple attempts to send the paperwork to Defendant's HR department. Nicholson advised Plaintiff on January 28, 2012, however, that Defendant had not received the paperwork and that Plaintiff should contact HR Director Gus Fuerte. Id., ¶ 39. Plaintiff contacted Fuerte and the paperwork was discovered by the HR department. Id., ¶ 40.
On February 1, 2012, Plaintiff sent Nicholson a text message stating that she felt she had been treated unfairly as a result of her rejection of Vanek's sexual advances. Id., ¶ 41. She forwarded Nicholson several examples of Vanek's inappropriate text messages. Id. In the same text message, Plaintiff notified Nicholson of the shortfalls in payment dating back to her time as Temporary Base Coordinator. Id. Plaintiff contacted Fuerte and made the same complaint. Id., ¶ 42. Fuerte told Plaintiff that he would look into the matter and get back to her. Id. No one ever discussed Plaintiff's complaints with her after she reported them to Fuerte. Id., ¶ 47.
In February 2012, Plaintiff was ill and unable to work for about a week. Id., ¶ 43. In early March 2012, Plaintiff was in a car accident and was unable to work for a few days. Id., ¶ 44. On March 12, 2012, less than six weeks after Plaintiff had complained to Nicholson and Fuerte about Vanek, Nicholson notified Plaintiff that she was being terminated for taking too much time off. Id., ¶ 45.
Plaintiff instituted this action on January 29, 2014 asserting nine claims, including workplace discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), sex discrimination in violation of Title VII, retaliation in violation of Title VII, interference in violation of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"), retaliation in violation of the FMLA, intentional infliction of emotional distress ("IIED"), negligent infliction of emotional distress ("NIED"), unpaid wages in violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"), and unpaid wages in violation of the Arizona Wage Act, A.R.S. § 23-355 ("AWA").
II. Legal Standard.
When analyzing a complaint for failure to state a claim under Rule 12(b)(6), the well-pled factual allegations are taken as true and construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Legal conclusions couched as factual allegations are not entitled to the assumption of truth, Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and therefore are insufficient to defeat a motion to dismiss for failure to state a claim, In re Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). To avoid a Rule 12(b)(6) dismissal, the complaint must plead enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This plausibility standard "is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). ...