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Morgan v. Freightliner of Arizona, LLC

United States District Court, D. Arizona

June 2, 2017

Virginia R. Morgan and David A. Vivaldo. Plaintiffs,
v.
Freightliner of Arizona, LLC, et al., Defendants.

          ORDER

          Cindy K. Jorgenson United States District Judge

         Pending 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.

         I. Factual A negations and Procedural Background[1]

         In a 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.

         A. Employment History and Wage/Fair Labor Standards Act ("FLSA ") Allegations

         Virginia 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 Mexican ancestry.

         As 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.

         Morgan, 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.

         At all times relevant, Freightliner classified Morgan and Vivaldo as exempt from the overtime pay requirements of the FLSA.

         B. Allegations Regarding Discrimination and Retaliation Against and Resulting Emotional and Physical Distress of Morgan

          "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.

         Supervisor 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.

         Lomeli 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 Morgan.

         Lomeli's 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.

         At 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 work.

         Morgan 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.

         While 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 the situation.

         Plaintiffs allege the discrimination against Morgan was due to sex and age.

         As a 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 menstrual discharge/cramps.

         C. Allegations Regarding Discrimination and Retaliation Against and Resulting Emotional and Physical Distress of Vivaldo

         "[A]t all times relevant, Vivaldo was a hardworking, exemplary employee." Id. at 74. Customers and fellow employees regularly praised his job performance.

         Lomeli 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.

         Plaintiffs 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.

         Because 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.

         Despite 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.

         Freightliner's 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.

         D. Tolling Agreement

         The 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.

         E. Litigation

         Morgan 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.

         On July 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

         On 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.

         Plaintiffs 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.

         On January 10, 2017, Plaintiffs filed a Notice of Filing Supplemental Authority (Doc. 23).

         II. Complaint and Plausibility Pleading Standard

         A 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).

         The 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.

         The 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 ...


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