United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Plaintiff Paul Johnson brings suit against Defendant Federal Express Corporation ("FedEx" or "Defendant"). Plaintiff claims that FedEx retaliated against him and constructively discharged him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e; the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621; and 42 U.S.C. § 1981. Doc. 15. FedEx moves to dismiss all claims pursuant to Rule 12(b)(6) because (1) Plaintiff's § 1981 claims are barred by the statute of limitations, (2) Plaintiff has failed to exhaust his administrative remedies, (3) Plaintiff has failed to state a claim for retaliation, and (4) Plaintiff has failed to state a claim for constructive discharge. Doc. 17. Plaintiff has filed a response and request for leave to amend if necessary. Doc. 20. The Court will deny Defendant's motion.
Plaintiff alleges the following facts, which are assumed true for the purposes of this motion. FedEx hired Plaintiff on July 20, 1981. Doc. 15, ¶ 6. Plaintiff remained employed by FedEx until February 25, 2014. Id. During his employment, Plaintiff held various positions including courier, operations manager, senior manager, and dispatch senior manager. Id., ¶ 7. FedEx named Plaintiff either "Manager of the Year" or "Senior Manager of the Year" on twelve occasions between 1992 and 2010. Id., ¶¶ 8, 10. In 2005, FedEx awarded Plaintiff the highest honor a FedEx Senior Manager can receive, the "Five Star Award." Id., ¶ 9.
Plaintiff worked as the senior manager of the DGLA station in Tempe, Arizona, from June 2003 until the DGLA station closed in June 2009. Id., ¶¶ 12, 13. Although Plaintiff was the senior manager at the station, FedEx did not inform Plaintiff about plans to close the DGLA station until four months after they had informed Plaintiff's DGLA station coworkers. Id., ¶ 14. FedEx's delay in informing Plaintiff of DGLA's closure prevented Plaintiff from applying for two job openings in the Phoenix area that would have kept Plaintiff from having to relocate and move away from his family. Id., ¶¶ 15-16. In February of 2009, when Plaintiff was informed of FedEx's plans to close DGLA, Plaintiff was 50 years old and one of five senior managers in the Phoenix area. Id., ¶¶ 13, 18. At that time, Plaintiff had the most tenure among Phoenix area senior managers, but Plaintiff was the only senior manager forced to relocate. Id., ¶ 20.
FedEx gave Plaintiff the option to either relocate to the LASA station in Las Vegas, or be "displaced" and have 90 days to secure a position at FedEx or have his employment terminated. Id., ¶ 24-25. Plaintiff chose to relocate to LASA station. Id., ¶ 26. In March 2009, Plaintiff filed an internal complaint with FedEx's equal employment opportunity ("EEO") office because he believed his age and race were factors in the decision to require only Plaintiff's relocation among the Phoenix area senior managers. Id., ¶¶ 27-28, 33.
Upon learning that Plaintiff was transferring to the LASA station, Canyon District managing director Raffi Arzoumanian called Plaintiff to express his anger that Plaintiff applied for and received the LASA senior manager position. Id., ¶ 29. Arzoumanian told Plaintiff that Arzoumanian and FedEx vice president Glen Corbin would scrutinize every decision Plaintiff made. Id., ¶ 31. Shortly after Plaintiff started at LASA, Arzoumanian met with Plaintiff and told him that "filing an EEO was the biggest mistake you ever made." Id., ¶ 32.
In July 2009, Plaintiff filed a complaint with the Equal Employment Opportunity Commission - the first of four Plaintiff would file against FedEx - alleging that his age and race were the reasons Plaintiff was the only senior manager in the Phoenix area who was forced to relocate. Id., ¶¶ 33, 36. For the remainder of Plaintiff's career with FedEx, Arzoumanian retaliated against Plaintiff through adverse actions that included threatening and abusive phone calls, unsubstantiated "Documented Counselings, " actions to prevent Plaintiff from promoting or transferring to positions that were closer to his family in Phoenix, and "taking actions that made Plaintiff's working conditions so intolerable that a reasonable person in Plaintiff's shoes would have felt compelled to resign." Id., ¶¶ 33-34. As a result of these retaliatory actions, Plaintiff was forced in July of 2009 to file an internal harassment claim against Arzoumanian and to go on medical leave due to stress. Id., ¶ 35.
In January 2010, Plaintiff's doctors released him to return to work. Id., ¶ 37. Plaintiff accepted an operations manager position at the ADSA station in Addison, Texas because FedEx had no senior manager or operations manager openings in Arizona. Id., ¶ 38. After starting at the ADSA station, FedEx informed Plaintiff that his salary would be reduced by approximately $4, 300 per year - a decision Plaintiff alleges was influenced by Arzoumanian. Id., ¶¶ 39-43. Plaintiff remained at the ADSA station from February 2010 until October 2010, during which time Plaintiff again was named "Manager of the Year" and received a 3.9 of a possible 4.0 on his annual review. Id., ¶¶ 45-46.
In September 2010, Plaintiff requested and received permission to apply for transfer positions closer to Phoenix in order to better cope with his anxiety disorder that intensifies when he is away from his family - labeled a "hardship transfer" by FedEx. Id., ¶¶ 17, 47-50. FedEx had no lateral openings in the Phoenix area at that time, so Plaintiff accepted an operations manager position at FLGA station in Flagstaff, Arizona. Id., ¶ 51. All positions at FLGA station ultimately reported to Arzoumanian. Id., ¶ 52. When Arzoumanian learned that Plaintiff applied for a transfer to the FLGA station, Arzoumanian called FLGA station management to ask if they could do without a new operations manager, but was told they could not. Id., ¶¶ 53-54. Plaintiff was placed in the position in October 2010. Id., ¶ 54. Shortly thereafter, Arzoumanian made an unannounced visit in which he refused to acknowledge Plaintiff and told Plaintiff's direct supervisor, Bill Falshaw, "Bill, you're not the problem here, [Plaintiff] is." Id., 55-56.
In November of 2011, Plaintiff requested and received another "hardship transfer." Id., ¶ 57. During the 90-day window provided by the "hardship transfer" to apply for transfer positions, Plaintiff applied for at least three openings in the Phoenix area - two lateral positions posted by Arzoumanian and one lower level position. Id., ¶¶ 58-59, 60, 72. Plaintiff was not selected to interview for any of the openings despite having "substantially greater credentials" than the candidates who were ultimately selected. Id., ¶¶ 58-77. After Arzoumanian did not interview Plaintiff for the first lateral position opening he applied for - senior manager at the ZYSA station - Plaintiff filed a complaint under FedEx's Guaranteed Fair Treatment Procedure ("GFTP") alleging that Arzoumanian discriminated against him based on his race and age, and retaliated against him for filing prior EEO and EEOC complaints. Id., ¶ 68.
In January 2012, Plaintiff filed a second complaint against Arzoumanian under the GFTP alleging discrimination based on race, age, and retaliation because Arzoumanian did not interview Plaintiff for the second lateral position he applied for - operations manager at the ZYSA station. Id., ¶ 78. After the second complaint, a FedEx human resources advisor contacted Plaintiff. Id., ¶ 79. The advisor told Plaintiff his January 2012 complaint would be considered alongside his November 2011 complaint, and advised Plaintiff to withdraw the January 2012 complaint. Id., ¶¶ 79-80.
Plaintiff asserts that Arzoumanian persuaded the FedEx advisor to contact Plaintiff and ask him to withdraw his January 2012 complaint. Id., ¶ 81. Plaintiff also asserts that FedEx failed to follow its own GFTP policy because, at Arzoumanian's behest, it did not place the contested hiring selections on hold until after Plaintiff's GFTP complaints were resolved. Id., ¶¶ 69-71, 82. Plaintiff claims that FedEx acknowledged it failed to follow its GFTP policy, but did not remedy the violation by transferring Plaintiff to a Phoenix area salaried position. Id., ¶¶ 82-92.
In March 2012, after FedEx denied Plaintiff an interview or placement for either of the ZYSA station openings, Plaintiff filed his second EEOC charge alleging discrimination based on age and race. Id., ¶ 93. In retaliation of this protected action, Arzoumanian assigned Plaintiff a work productivity rate requirement that was twice as high as the work productivity rate requirement given to any other operations manager and which was impossible to achieve. Id., ¶¶ 94-101. In October 2012, Plaintiff filed his ...