United States District Court, D. Arizona
Honorable G. Murray Snow United States District Judge.
before the Court is Defendant Tony Bouie's Motion for
Partial Judgment on the Pleadings as to the Plaintiffs'
Sex Discrimination Claim, (Doc. 21). For the following
reasons, the Court denies the motion.
Karen Bach was employed by the Arizona Lottery from November
2011 until March 12, 2015. Plaintiff Jessica Reimann was employed
by the Arizona Lottery from January 2013 until April 7, 2015.
Defendant Tony Bouie was appointed as Director of the Arizona
Lottery on January 30, 2015. Bach and Reimann reported
directly to Bouie.
Plaintiff alleges that her employment with the Arizona
Lottery became difficult, and was eventually terminated, as a
result of actions taken by Bouie. The Complaint alleges that
Bouie's “management style was aggressive,
disruptive and hostile.” (Doc. 1 at 3.) Plaintiff Bach
alleges that she was called into a meeting with Bouie and a
human resources employee, to be informed with no prior notice
that certain responsibilities and job titles were to be taken
from her. Those responsibilities were then given to a
newly-hired man. Several weeks later, at another meeting,
Plaintiff Bach was informed that she was to be terminated.
Her remaining job responsibilities were soon given to a
newly-hired man, who received a higher salary than Bach had.
Reimann alleges that Bouie made “inappropriate and
derogatory comments” to Reimann directly, as well as a
crude and suggestive remark in a meeting with female
employees. (Doc. 1 at 5.) Reimann was notified at an
impromptu meeting that her office was to be taken from her
and given to a newly-hired man. After expressing her concern
regarding a possible ethics violation to an Assistant
Attorney General assigned to the Arizona Lottery, Reimann was
called into Bouie's office, ordered to resign, and then
fired when she refused to do so. Reimann's job
responsibilities were given to two newly-hired men.
seek relief under 42 U.S.C. § 1983 on two grounds. In
Count One, both Plaintiffs allege that Bouie violated
Plaintiffs' Fourteenth Amendment right to be free from
sex discrimination. In Count Two, Plaintiff Reimann alleges
that Bouie violated Reimann's right to be free from
retaliation for exercising her First Amendment right to free
speech. Bouie seeks to dismiss Count One for failure to state
a claim. Specifically, he argues that Plaintiffs may not
bring a suit under § 1983 for sex discrimination but
must instead sue under Title VII; and because Plaintiffs did
not comply with the administrative requirements of Title VII,
they may not sue at all.
motion for judgment on the pleadings pursuant to Federal Rule
of Civil Procedure 12(c) “is properly granted when,
taking all the allegations in the non-moving party's
pleadings as true, the moving party is entitled to judgment
as a matter of law.” Fajardo v. Cty. of L.A.,
179 F.3d 698, 699 (9th Cir. 1999). To survive a Rule 12(c)
motion, a plaintiff must allege sufficient facts to state a
claim that is plausible on its face.Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). The 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.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556).
plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully. Where a
complaint pleads facts that are ‘merely consistent
with' a defendant's liability, it ‘stops short
of the line between possibility and plausibility of
entitlement to relief.'” Id. (quoting
Twombly, 550 U.S. at 555) (internal citations
omitted). Similarly, legal conclusions couched as factual
allegations are not given a presumption of truthfulness, and
“conclusory allegations of law and unwarranted
inferences are not sufficient to defeat a motion to
dismiss.” Pareto v. FDIC, 139 F.3d 696, 699
(9th Cir. 1998).
state a claim for relief in an action brought under §
1983, [plaintiffs] must [allege] that they were deprived of a
right secured by the Constitution or laws of the United
States, and that the alleged deprivation was committed under
color of state law.” Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 49-50 (1999). “Section 1983
‘is not itself a source of substantive rights, '
but merely provides ‘a method for vindicating federal
rights elsewhere conferred.'” Albright v.
Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v.
McCollan, 443 U.S. 137, 144, n. 3 (1979)).
Plaintiffs may bring suit for sex discrimination under 42
U.S.C. § 1983 without exhausting the administrative