United States District Court, D. Arizona
Honorable Jacqueline M. Rateau United States Magistrate
before the Court is Defendant TMC's Renewed Partial
Motion to Dismiss (Doc. 19). Plaintiff Powell filed a
Response (Doc. 25) and TMC filed a Reply (Doc. 31). For the
reasons explained below, the Motion to Dismiss is granted and
Plaintiff is granted leave to amend.
Motion to Dismiss Standard
purposes of deciding a motion to dismiss, the court assumes
that the facts alleged in the complaint are true. See
Ashcroft v. Iqbal¸ 556 U.S. 662, 679 (2009).
However, since the Supreme Court's decisions in
Iqbal and Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), to survive a 12(b)(6) motion to dismiss
for failure to state a claim, a plaintiff's factual
allegations in the complaint “must . . . suggest that
the claim has at least a plausible chance of success.”
Levitt v. Yelp! Inc., 765 F.3d 1123, 1134-35 (9th
Cir. 2014) (quoting In re Century Aluminum Co. Securities
Litigation, 729 F.3d 1104, 1107 (9th Cir. 2013). To meet
the plausibility requirement, the complaint must allege
“factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Levitt, 765 F.3d 1134-35
(9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678.
the guidance of Iqbal and Twombly, the
Ninth Circuit has developed a two-step process for evaluating
complaints: “First, to be entitled to the presumption
of truth, allegations in a complaint or counterclaim may not
simply recite the elements of a cause of action, but must
contain sufficient allegations of underlying facts to give
fair notice and to enable the opposing party to defend itself
effectively. Second, the factual allegations that are taken
as true must plausibly suggest an entitlement to relief, such
that it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued
litigation.” Levitt v. Yelp! Inc., 765 F.3d
1123, 1134-35 (9th Cir. 2014). Notably, “[t]he
plausibility standard is not akin to a “probability
requirement, ” but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678.
Factual Allegations in the Amended Complaint
First Amended Complaint (“FAC”), Plaintiff Powell
asserts two claims. His First Cause of Action
(“FCA”) alleges termination in violation of the
Americans with Disabilities Act (“ADA”) because
he was terminated based on his disability and in retaliation
for having opposed discrimination. In his Second Cause of
Action (“SCA”), Powell alleges that he was
wrongfully terminated because he exercised his right to file
a workers' compensation claim. Defendant TMC seeks the
dismissal of the SCA only.
facts alleged in support of the SCA are as follows: Powell
began his employment with TMC in 1999 through 2010 through a
contract support services management company called Med-Dyn
and later Crothal. FAC, ¶ 11. In 2010, TMC hired Powell
as the Environmental Services Director. FAC, ¶ 12.
Throughout his employment at TMC, Mr. Powell's
performance always met or exceeded the expectations of his
supervisors. FAC, ¶ 13. On February 17, 2015, Powell
suffered a shoulder injury while at work at TMC. FAC, ¶
14; TMC Exhibit 3 (Employer's Report of Industrial
Injury). As a result of his work-related injury,
Powell exercised his right to file a workers'
compensation claim. FAC, ¶ 15. Powell was treated for
his injury with medication for approximately four months
without success. Despite his injury, Powell continued
performing the duties of his position in a satisfactory
manner. FAC, ¶ 16.
of 2015, Karen Mlawsky left Banner Health and joined
TMC's management as Chief Operations Officer and that
same month became Powell's immediate supervisor. FAC,
¶¶ 17, 18. At the end of 2015, Mlawsky evaluated
Powell's performance and described him as a “strong
performer with significant leadership potential.” FAC,
2016, Powell notified Mlawsky he suffered a work related
injury in 2015 and need to take leave for surgery related to
his work-related injury. FAC, ¶ 20. On July 21, 2016,
Powell took medical leave for his surgery and returned on
July 28, 2016. FAC, ¶ 21. Upon his return to work,
Powell noticed that Mlawsky's attitude toward him had
changed dramatically. FAC, ¶22.
August 16, 2016, Mlawsky called Powell into a meeting that
included the Vice-President of Human Resources, Alex Horvath.
During the meeting, Mlawsky yelled at Powell and criticized
his body language. Powell did not understand to what Mlawsky
was referring and told her that he was in some physical
discomfort after his recent surgery. FAC, ¶ 23. Then, on
August 24, 2016, Powell told HR Vice-President Horvath that
he felt harassed by Mlawsky's comments on his alleged
“body language” and the fact that he was in pain
after surgery. Powell told Horvath that he felt she was
making fun of him because of his pain relating to his
shoulder surgery. FAC, ¶ 24.
November 2016, Mlawsky notified Powell that he would no
longer be reporting to her. Powell was then required to
report to another TMC Director who had been with TMC for less
than five years. FAC ¶ 25.
December 19, 2016, TMC terminated Powell's employment.
During his termination meeting, Mlawsky informed Powell that
his termination was solely her decision. FAC, ¶ 26. In
his SCA, Powell alleges that the termination was caused by
the exercise of his right to file a workers' compensation
claim and was wrongful under A.R.S. §
23-1501(A)(3)(c)(iii). FAC, ¶¶ 33, 34.