Powell v. Tucson Medical Center

          ORDER

          Honorable Jacqueline M. Rateau United States Magistrate Judge.

         Pending 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.

         I. Motion to Dismiss Standard

         For the 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.

         With 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.

         II. Factual Allegations in the Amended Complaint

         In the 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.

         The 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).^[1] 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.

         In May 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, ¶ 19.

         In July 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.

         On 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.

         In 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.

         On 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.

         III. ...