United States District Court, D. Arizona
Virginia R. Morgan and David A. Vivaldo. Plaintiffs,
Freightliner of Arizona, LLC, et al., Defendants.
K. Jorgenson United States District Judge
before the Court are the Motion to Dismiss (Doc. 14) filed by
Defendants Freightliner of Arizona, LLC; FSWAZ, Ltd.; FAZP,
Inc.; FAZF, Inc.; Danny R. Cuzick and Jane Doe Cuzick; and
Theril H. Lund and Jane Doe Lund and the Motion to Dismiss
(Doc. 15) filed by Defendants Freightliner of Arizona, LLC,
Redgate Arizona, LLC, and Redgate Partners, LLC dba Velocity
Vehicle Group. Plaintiffs have filed a Combined Response and
Opposition to Defendants' Motions to Dismiss (Doc. 18).
Defendants have filed Replies (Docs. 21 and 22). Oral
argument was presented to the Court on May 22, 2017.
Factual A negations and Procedural
transaction that closed in February 2015, Defendant
Freightliner of Arizona, LLC ("Freightliner"), was
transferred from Defendants FSWAZ, Ltd. ("FSWAZ"),
FAZP, Inc. ("FAZP"), and FAZF, Inc.
("FAZF"), Danny R. Cuzick and Jane Doe Cuzick
("the Cuzicks"), and Theril H. Lund and Jane Doe
Lund (the "Lunds") (collectively, "Seller
Defendants") to Redgate Arizona, LLC
("Redgate"), Redgate Partners, LLC ("Redgate
Partners") (collectively, "Redgate
Defendants"). Redgate Defendants' Motion to Dismiss
states Freightliner sells and services trucks. Motion to
Dismiss (Doc. 15), p. 3.
Employment History and Wage/Fair Labor Standards Act
("FLSA ") Allegations
R. Morgan ("Morgan") began working for Freightliner
in February 2013 as a Customer Service Representative
("CSR"). Morgan continues to be an employee of
Freightliner. Morgan is a female and, at all relevant times,
has been over the age of 40. David A. Vivaldo
("Vivaldo") began working for Freightliner in
January 2014 as a CSR. In May 2015 Freightliner, citing
budgetary and over-staffing concerns, terminated
Vivaldo's employment. Vivaldo is a Hispanic male of
CSRs, Morgan and Vivaldo's duties included "greeting
customers, advising them in connection with their service
needs, coordinating warranty repairs, and serving as the
interface between the customer and the actual performance of
mechanic labor on a vehicle." Complaint (Doc. 1), ¶
25. "During the vast majority of Plaintiffs' work
time during the relevant periods, Plaintiffs did not engage
in the sales or servicing of parts or vehicles. . .
Plaintiffs spent most of their time relaying information to
and from clients and on paperwork and recordkeeping."
Id. at ¶42.
almost without exception, worked in excess of 40 hours per
workweek from February 2013 through June 2015. Morgan did not
receive wages for all hours worked and was not paid a rate at
or above the Arizona and/or federal minimum wages, and/or did
not receive overtime compensation as required by federal law.
Vivaldo, almost without exception, worked in excess of 40
hours per workweek from January 2014 through May 2015.
Vivaldo did not receive wages for all hours worked and was
not paid a rate at or above the Arizona and/or federal
minimum wages, and/or did not receive overtime compensation
as required by federal law.
times relevant, Freightliner classified Morgan and Vivaldo as
exempt from the overtime pay requirements of the FLSA.
Allegations Regarding Discrimination and Retaliation
Against and Resulting Emotional and Physical Distress of
"At all times relevant, Morgan has been a hardworking,
exemplary employee[, ]" Id. at ¶ 46, and
customers and fellow employees regularly praise her job
performance. However, "[c]ertain Freightliner employees
. . ., with the knowledge and acquiescence of Freightliner
management, acted abusively and in a manner inconsistent with
what should be tolerated in a modern workplace."
Id. at 47.
Joshua Lomeli ("Lomeli") provided Morgan with
inaccurate, unfair reviews of her performance that negatively
affected her pay. Lomeli assigned Morgan to night and weekend
shifts where she would receive no assistance to perform her
work. However, Lomeli assigned younger (under 40) males more
desirable shifts, were given assistance during such shifts,
and were constantly praised and rewarded for lesser and
inferior work performance.
required Morgan to perform inordinate amounts of work,
sometimes over 80 hours per workweek. Younger male
counterparts who worked much less and were less productive
received a greater rate of pay and greater total pay than
authority to fire Morgan, supervise Morgan, control
Morgans' work schedule and conditions of employment,
determine her rate of pay, maintain employment-related
records on Morgan provided Lomeli with economic control or
control over the nature and structure of the employment
relationship between Freightliner and Morgan.
various times, Morgan asked Lomeli, one on one and during
staff meetings, to explain why she would receive less
desirable shifts, more work, more scrutiny, and less pay than
her younger, male counterparts. Lomeli would typically
respond by telling Morgan to "shut up" and to not
to bring up such issues. Id. at 61. Whenever Morgan
would attempt to obtain information regarding her pay or
status and/or make her work circumstances better, Lomeli
would expose her to even greater scrutiny and give her more
attempted to report Lomeli's conduct and her unfair work
conditions to Freightliner's human resources personnel.
Morgan's attempts to contact Freightliner's director
of human resources, Gordon Evans, was not successful.
Lomeli was the supervisor, Matthew Davidson
("Davidson"), a Freightliner foreman and friend of
Lomeli's, often made improper comments of an unwelcome,
sexual, and harassing nature that were outrageous and
specifically calculated to embarrass/harm Morgan and
marginalize her in the workplace. Examples of the conduct are
provided in the Complaint. See e.g. Complaint,
¶¶ 65-67. Freightliner had not provided any
non-discrimination/equal employment opportunity training to
Plaintiffs or their coworkers at Freightliner's Tucson
facility when Davidson made the comments. Morgan made
attempts to report this conduct to Freightliner human
resources personnel, but Freightliner failed to address the
issues until counsel for Morgan demanded Freightliner remedy
allege the discrimination against Morgan was due to sex and
result of the work environment and the circumstances created
by Freightliner, Morgan suffered anxiety attacks (accompanied
by rapid heart rate, profuse perspiration, and uncontrollable
shaking), insomnia, headaches, and depression. This includes
the stress caused by the unfair pressure to perform at high
levels (which was not placed on her younger, male colleagues)
and the long hours she worked (which her younger, male
colleagues did not have to work). Morgan suffered various
adverse physical symptoms including, without limit, vomiting,
stomach cramps, diarrhea, transient appetite, and unusual
Allegations Regarding Discrimination and Retaliation
Against and Resulting Emotional and Physical Distress of
all times relevant, Vivaldo was a hardworking, exemplary
employee." Id. at 74. Customers and fellow
employees regularly praised his job performance.
gave Vivaldo less desirable shifts, no assistance, a bigger
work load, and significantly more work hours with less pay
than his counterparts who were not members of any protected
class, or no pay at all. Lomeli's authority over Vivaldo
provided Lomeli with economic control or control over the
nature and structure of the employment relationship between
Freightliner and Vivaldo.
allege the discrimination against Vivaldo was due to his
race, color, and/or national origin. In contrast,
Freightliner and Lomeli treated white and other than
Hispanic-origin employees more favorably by providing them
with more favorable working conditions such as better shifts
and assistance from other employees.
of the discrimination perpetrated primarily by Lomeli,
Vivaldo received less pay, if any, for certain work than his
counterparts that were not part of any protected class.
Vivaldo's excellent work, Freightliner terminated
Vivaldo's employment in May 2015 citing supposed
budgetary and over-staffing concerns. A non-Hispanic male was
hired to fill Vivaldo's position.
failure to train against and prevent the work environment
created by Freightliner and its employees, and its
termination of Vivaldo's employment have caused
substantial financial loss and significant emotional and
physical distress to Vivaldo. As a result of the work
environment and the circumstances created by Freightliner,
Vivaldo suffered extreme depression, anxiety and nervousness,
and insomnia. Freightliner providing the race-based unfair
treatment, the racially-motivated outrageous termination of
his employment despite his excellent work, and the long hours
he worked under inordinate pressure caused Vivaldo to suffer
various adverse physical symptoms including, without limit,
body aches, fatigue, insomnia, headaches, vomiting, diarrhea,
and transient appetite.
parties have entered into a Second Tolling Agreement with an
effective date of April 22, 2016 (the "Tolling
Agreement"). Among other things, the parties agreed that
any and all claims filed by Plaintiffs between July 15, 2016,
and July 31, 2016, would be considered timely and that the
defending parties would not "assert a laches defense or
any other time-based doctrine or defense, rule, or statute,
that could limit the [Plaintiffs'] right to assert,
preserve, and or prosecute any of the Claims [as
defined]." Complaint, ¶89.
filed a charge of discrimination with the Equal Employment
Opportunity Commission ("EEOC") and received a
notice of right to sue on June 27, 2016. Id. at
¶ 36. Vivaldo filed a charge of discrimination and
received a notice of right to sue on June 24, 2016. Mat 38.
28, 2016, Plaintiffs filed a Complaint with this Court.
Plaintiffs allege claims for the following:
a. Count I - Fair Labor Standards Act
b. Count II - Title VII / Arizona Civil Rights Act
c. Count III - Equal Pay Act
d. Count IV - Age Discrimination in Employment Act / ACRA
e. Count V-A.R.S. §23-355
f Count VI - Arizona Minimum Wage Act
g. Count VII - Intentional Infliction of Emotional Distress
September 9, 2016, Seller Defendants filed a Motion to
Dismiss (Doc. 14). Seller Defendants seek dismissal with
prejudice of the FLSA claim in Count I, the color
discrimination claims in Counts II, V, VI, and VII, the wage
claims in Count V, the minimum wage claims in Count VI, and
the intentional infliction of emotional distress claims in
Count VII. Seller Defendants also seek dismissal with
prejudice of the Cuzicks, the Lunds, FSWAZ, FAZP, and FAZF.
Also on September 9, 2016, the Redgate Defendants filed a
Motion to Dismiss (Doc. 15). The Redgate Defendants join in
and adopt the Seller Defendants' Motion to Dismiss.
Additionally, the Redgate Defendants seek dismissal of
Redgate and Redgate Partners.
filed a Response to the Motions to Dismiss on October 12,
2016; Seller Defendants and Redgate Defendants each filed a
Reply on November 7, 2016.
January 10, 2017, Plaintiffs filed a Notice of Filing
Supplemental Authority (Doc. 23).
Complaint and Plausibility Pleading Standard
complaint is to contain a "short and plain statement of
the claim showing that the pleader is entitled to
relief[.]" Fed.R.Civ.P. 8(a). Nonetheless, a complaint
must set forth a set of facts that serves to put defendants
on notice as to the nature and basis of the claim(s).
United States Supreme Court has found that a plaintiff must
allege "enough facts to state a claim to relief that is
plausible on its facts." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). While a complaint
need not plead "detailed factual allegations, " the
factual allegations it does include "must be enough to
raise a right to relief above the speculative level."
Id. at 555; see also Starr v. Baca, 652
F.3d 1202, 1216 (9th Cir. 2011) ("If there are two
alternative explanations, one advanced by defendant and the
other advanced by plaintiff, both of which are plausible,
plaintiffs complaint survives a motion to dismiss[.]").
Indeed, Fed.R.Civ.P. 8(a)(2) requires a showing that a
plaintiff is entitled to relief "rather than a blanket
assertion" of entitlement to relief. Id. at
1965 n. 3. The complaint "must contain something more .
. . than ... a statement of facts that merely creates a
suspicion [of] a legally cognizable right to action."
Id. at 1965.
Court also considers that the Supreme Court has cited
Twombly for the traditional proposition that
"[s]pecific facts are not necessary [for a pleading that
satisfies Rule 8(a)(2)]; the statement need only 'give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests." Erickson v.
Pardue,551 U.S. 89, 93(2007). Indeed, Twombly
requires "a flexible 'plausibility standard, '
which obliges a pleader to amplify a claim with some factual
allegations in those contexts where such amplification is
needed to render the claim plausible." Iqbal v.
Hasty,490 F.3d 143, 157-58 (2nd Cir. 2007); see
also Moss v. U.S. Secret Service,572 F.3d 962 (9th Cir.
2009) (for a complaint to survive a motion to ...