United States District Court, D. Arizona
Shiri S. Tannehill, Plaintiff,
Southwest Airlines, Defendant.
DAVID G. CAMPBELL, District Judge.
Defendant Southwest Airlines has filed a motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6). Doc. 7. The motion is fully briefed. The Court will grant the motion.
Plaintiff Shiri Tannehill is a former employee of Defendant. Plaintiff worked for Defendant as a flight attendant from 1989 to 2013. Doc. 7 at 3. Plaintiff is an African-American female. Doc. 1, ¶ 4. Plaintiff alleges that she was involved in a physical altercation with a fellow employee who had been harassing her. Id., ¶¶ 9-10. Plaintiff was apparently terminated following this altercation, while the other employee was not. Id., ¶ 11; Doc. 7 at 3. Plaintiff filed a charge of discrimination with the Arizona Attorney General's Office on November 14, 2013, alleging discrimination on the basis of age and disability. Doc. 7-1 at 4. She also filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on November 19, 2013, making the same allegations. Id. at 3. Plaintiff filed this action on March 5, 2014, asserting claims for discrimination in violation of Title VII, racial discrimination, and age discrimination. See Doc. 1.
II. Legal Standard.
When analyzing a complaint for failure to state a claim to relief 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). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not show[n]' - that the pleader is entitled to relief.'" Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
Defendant first argues that "Plaintiff failed to file any charge alleging a violation of Title VII and, thus, failed to exhaust her administrative remedies." Doc. 7 at 5. Plaintiff "was required to exhaust [her] administrative remedies by either filing a timely charge with the EEOC, or the appropriate state agency, thereby affording the agency an opportunity to investigate the charge.'" Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002) (quoting B.K B. v. Maui Police Dept., 276 F.3d 1091, 1099 (9th Cir. 2002)). Where a plaintiff seeks "judicial relief for claims not listed in the original EEOC charge, " her complaint "may encompass any discrimination like or reasonably related to the allegations of the EEOC charge." Freeman, 291 F.3d at 636 (internal quotation marks and citation omitted). Generally, allegations of discrimination not included in a plaintiff's EEOC charge may not be considered by a federal court, but "subject matter jurisdiction extends over all allegations of discrimination that either fell within the scope of the EEOC's actual investigation or an EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'" Id. (quoting B.K.B., 276 F.3d at 1100) (emphasis in original). Courts construe EEOC charges with the "utmost liberality" because "they are made by those unschooled in the technicalities of formal pleading[.]" Freeman, 291 F.3d at 636 (quoting B.K.B., 276 F.3d at 1100).
Defendant argues that neither of Plaintiff's charges alleges any claim for discrimination based on race, national origin, or retaliation. Doc. 7 at 5-6. Defendant is correct. Plaintiff's charges allege discrimination on the basis of age and disability. See Doc. 7-1 at 3-4. The boxes for retaliation, race, and national origin are not checked on either charge and the facts alleged on Plaintiff's Arizona charge state that Plaintiff believed "she [had] been discriminated against because of my age" and "because of my medical condition." Id. There are no facts related to retaliation or discrimination on the basis of race or national origin.
Plaintiff appears to argue that the EEOC overlooked her statement and emails when she made her charge, but she does not provide any of the emails or statements she alleges were overlooked. Doc. 10 at 1. Plaintiff also appears to acknowledge that discrimination under Title VII does not appear in either charge because she states that she would like for Title VII charges to be included "in to the charges against defendant Southwest Airlines at this time (sic)." Id.
Even construing Plaintiff's claims with the utmost liberality, it is clear that discrimination on the basis of race or national origin, and retaliation, were not included in either of Plaintiff's charges. Nor can the Court conclude that such claims would be reasonably expected to grow out of Plaintiff's allegations of discrimination based on age and disability. Accordingly, the Court will grant Defendant's motion to dismiss these claims.
The Court will also grant Defendant's motion to dismiss as to any age discrimination claim. Plaintiff's complaint states at the outset that it is based on "racial and age discrimination, " but Plaintiff pleads no facts to support any claim that she was discriminated against on the basis of age. See Doc. 1. Simply stating that she was subject to age discrimination, without more, is insufficient to state a claim. See Twombly, 550 U.S. at 570.
Plaintiff's response also argues that Defendant "lacked the just cause necessary pursuant to article 19.S.1(I) of the collective bargaining agreement." Doc. 10 at 1. Plaintiff makes no such allegations in her complaint, and this argument does not prevent the dismissal of her complaint.
Defendant asks the Court to dismiss Plaintiff's complaint with prejudice. Doc. 11 at 7. In this circuit, however, "[a] pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The Court will dismiss the complaint without prejudice and allow Plaintiff to file an amended complaint, consistent with ...