Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shoup v. Tucson Unified School District

United States District Court, D. Arizona

August 10, 2017

Sonia J. Shoup, Plaintiff,
v.
Tucson Unified School District, Defendant.

          FINAL ORDER

          Hon. David C. Bury United Slated District Judge

         This matter comes before the Court on Defendant's Motion to Dismiss based on the doctrine of res judicata. The parties conducted oral argument before the Court on August 2, 2017 and the Court took the matter under advisement. The Court now rules.

         SUMMARY

         It is not contested that Plaintiff is a person with a disability, a condition that required accommodation to perform the essential functions of the position. Nor is it disputed that during Plaintiff's 17 years of employment as an RN with Defendant TUSD that she has filed two separate charges of discrimination. The 2010 Charge of Discrimination is the subject matter of the instant action. Defendant argues, in the Motion to Dismiss (Doc.11), that the voluntary dismissal with prejudice of the first federal action requires dismissal of this action based on res judicata. Plaintiff argues that there is no factual nexus between Plaintiff's June 2010 Charge of Discrimination (EEOC No. 35A2010-00560C) and her August 2012 Charge of Discrimination (EEOC No. 35A-2012-000490C). The Complaint (Doc. 1) alleges employment discrimination based on disability, 29 U.S.C. §791, denial of reasonable accommodation, hostile work environment.

         BACKGROUND

         While employed with the Defendant as a Registered Nurse (RN), Plaintiff filed a Charge of Employment Discrimination simultaneously with the Civil Rights Division of the Arizona Attorney General's Office (ACRD) and the United States Equal Employment Opportunity Commission (EEOC); this Charge was filed in June of 2010. CRD No. T10-0769; EEOC No. 35A-2010-00560C. During the 2008-09 school year Plaintiff was assigned to three schools, Bloom, Cragin and Sewell. During the 2008-09 school year Plaintiff requested reasonable accommodation that was recognized as needed, appropriate and required. Starting in February 2009 accommodation was provided at Bloom and Swell and denied at Cragin. On or about June 3, 2010 Plaintiff was disciplined for alleged unprofessional conduct. This discipline resulted in a five day suspension without pay. The alleged conduct did not occur as alleged, was premised on Plaintiff's disability and retaliation for having engaged in protected conduct. On or about June 16, 2010 Plaintiff was removed from Bloom without cause and told all approved accommodations were rescinded. During the period covered by the aforementioned Charge of Discrimination Plaintiff repeatedly reported discrimination and her need for accommodation. After Plaintiff identified herself to the Defendant as an individual with a disability, requested reasonable accommodation and filed a Charge of Discrimination with the ACRD and EEOC, she was subjected to adverse employment actions by the Defendant, including denial of reasonable accommodation and discipline. After investigation of the June 2010 Charge of Discrimination by the ACRD, a “reasonable cause” determination issued on May 27, 2011 that found violations of law due to the conduct and actions of the Defendant. The EEOC has issued Plaintiff a Notice of Right to Sue for Charge No. 35A-2010-00560C which was received on May 31, 2016. (Complaint at 2-3.) This action was filed in federal court on August 24, 2016.

         For the 2010 Charge of Discrimination, the EEOC issued to Plaintiff a Notice of Right to Sue for Charge No. 35A- 2010-00560C on May 31, 2016. Plaintiff filed the 2010 Charge of Discrimination action in federal court on August 24, 2016. (CV-16-573-TUC-DCB.) This is the federal action pending before this Court.

         For the 2012 Charge of Discrimination, the EEOC issued to Plaintiff a Notice of Right to sue for Charge No. 35A-2012-000490C on October 23, 2013. Plaintiff filed an action in federal court on the 2012 Charge of Discrimination on January 22, 2014. The 2012 Charge of Discrimination action was voluntarily dismissed without prejudice on July 31, 2015. (CV-14-778-TUC-JAS.)

         STANDARD OF REVIEW

         A court may not dismiss a complaint for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief.” Barnett v. Centoni, 31 F.3d 813, 813 (9th Cir.1994) (citing Buckey v. Los Angeles, 957 F.2d 652, 654 (9th Cir.1992)). “The federal rules require only a 'short and plain statement of the claim showing that the pleader is entitled to relief.'” Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 248 (9th Cir.1997) (quoting Fed.R.Civ.P. 8(a)). Indeed, though A 'it may appear on the face of the pleadings that a recovery is very remote and unlikely [, ] ... that is not the test.'” Gilligan, 108 F.3d at 249 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). A 'The issue is not whether the plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'” Id.

         When analyzing a complaint for failure to state a claim, “[a]ll allegations of material fact are taken as true and construed in the light most favorable to the non-moving party.” Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir.1996); see Miree v. DeKalb County, 433 U.S. 25, 27 n. 2 (1977). In addition, the district court must assume that all general allegations “embrace whatever specific facts might be necessary to support them.” Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 521 (9th Cir.1994), cert. denied, 515 U.S. 1173 (1995) (citations omitted).

         DISCUSSION

         The 2010 Charge of Discrimination involved the following contested factual allegations: During the 2008-09 school year Plaintiff was assigned to three schools, Bloom, Cragin and Sewell. During the 2008-09 school year Plaintiff requested reasonable accommodation that was recognized as needed, appropriate and required. Starting in February 2009 accommodation was provided at Bloom and Swell and denied at Cragin. On or about June 3, 2010 Plaintiff was disciplined for alleged unprofessional conduct. This discipline resulted in a five day suspension without pay. The alleged conduct did not occur as alleged, was premised on Plaintiff's disability and retaliation for having engaged in protected conduct. On or about June 16, 2010 Plaintiff was removed from Bloom without cause and told all approved accommodations were rescinded. During the period covered by the aforementioned Charge of Discrimination Plaintiff repeatedly reported discrimination and her need for accommodation. In her 2010 Charge of Discrimination federal action, Plaintiff filed charges of employment discrimination (disability and denial of accommodation), hostile work environment and retaliation.

         The August 2012 Charge of Discrimination involved the following contested factual allegations: During the 2011-12 school year Plaintiff was assigned to three schools, Banks, Naylor and Sewell. During the 2011-12 school year Plaintiff was denied needed staff support at Naylor and subjected to repeated acts of abusive conduct by a male subordinate at Banks that was reported. No appropriate remedial measure was provided. For the 2011-12 school year Plaintiff was provided a performance evaluation that was not accurate and critical of the Plaintiff's performance. During the 2012-13 school year Plaintiff was assigned to three schools, Banks, Naylor and Sewell. During the 2012-13 school year Plaintiff was again subjected to abusive conduct by a male subordinate at Banks that was reported and no appropriate remedial measure was provided. During the 2012-13 school year Plaintiff received discipline in the form of a letter of direction on or about August 6, 2012, that was based upon inaccurate information and administered without prior notice or any opportunity to respond. During the 2012-13 school year Plaintiff's employment with the Defendant was ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.