United States District Court, D. Arizona
HONORABLE SUSAN M. BRNOVICH UNITED STATES DISTRICT JUDGE.
before the Court is Defendant Eastridge Workforce
Solutions' Motion to Dismiss Plaintiff's Third
Amended Complaint pursuant to Fed.R.Civ.P.
12(b)(6).(Doc. 43). Also pending before the Court
are Plaintiff Germaine Holloway's Motion to Extend
Deadline to Amend Statement of Claim (Doc. 47); Motion to
Amend Statement of Claim (Doc. 48); Motion to Reinstate
Dexcom as Defendant (Doc. 49); and Motion to Request
Extension to Find Counsel (Doc. 50).
case arises out of Plaintiff's complaint initially filed
on March 12, 2018, against Defendant Eastridge Workforce
Solutions (Doc. 1), and later amended to include Defendant
Dexcom (Doc 36). Plaintiff alleges discriminatory conduct
related to termination of his employment, unequal terms and
conditions of his employment, and retaliation. (Doc. 36 at
4). Plaintiff alleges that he was hired on June 14, 2017, by
Defendant Eastridge to work for Dexcom as “a temp to
hire employee.” (Doc. 36 at 7). Plaintiff alleges that
on June 19, 2017 (his first day of training at Dexcom), he
asked Dexcom manager about changing his seat “due to
coworker smelling of t[o]bacco, perfume, and leaning in on
me, my chair invading my personal space, ” and was told
that seating was permanent for three weeks of training.
Id. Plaintiff alleges on June 20th that he asked
Eastridge about seating, to which they responded that they
would request a change. Id. Plaintiff also alleges
that he complained at a company meeting on June 23rd that
employees were smoking too close to the building.
Id. Plaintiff alleges that he filed a formal
complaint with Eastridge for sexual harassment on June 26th,
and that on July 7th, he was called by a manager at Defendant
Eastridge and told that the harassment complaint was
“uncorroborated” and that he was terminated.
Id. at 7-8.
amended complaint, Plaintiff indicates that he is bringing
this action pursuant to Title VII of the Civil Rights Act of
1964, codified as 42 U.S.C. §§ 2000e to 2000e-17,
on the basis of race and gender. (Doc. 36 at 3). Plaintiff
further states that he was discriminated against based on his
race as “no action because a black man complained,
” and based on his gender/sex as “no action
because a man complained about a woman.” (Doc. 36 at
4). Plaintiff also alleges to have received a “Notice
of Right to Sue” letter from the Equal Employment
Opportunity Commission (“EEOC”), and attaches a
letter from the EEOC to the complaint. (Doc. 36 at 5, 10).
MOTION TO DISMISS
Eastridge asks the Court to dismiss Plaintiff's
“Third Amended Complaint (Doc. 36) under Rule 12(b)(6)
of the Federal Rules of Civil Procedure.” (Doc. 43 at
1). As a preliminary matter, while Defendant Eastridge
asserts that Doc. 36 is Plaintiff's “Third Amended
Complaint, ” the Court will consider Doc. 36 as
Plaintiff's “First Amended Complaint” for the
following reasons. Plaintiff's original complaint was
filed on March 12, 2018. (Doc. 1). Thereafter, Plaintiff
filed two motions to amend his complaint, (Docs. 19, 24),
along with proposed amended complaints. (Docs. 19-1, 25).
However, in Chief Judge Snow's October 15, 2018 order,
Plaintiff's original complaint was dismissed pursuant to
28 U.S.C. § 1915(e)(2), and Chief Judge Snow ordered
that Plaintiff's Motions to Amend (Docs. 19, 24) be
denied as moot. (Doc. 35 at 3). Furthermore, in a subsequent
order, Chief Judge Snow stated that “Plaintiff filed
his First Amended Complaint (Doc. 36) and after review, the
Court will allow Plaintiff to move forward with service of
the Summons and Amended Complaint.” (Doc. 39 at 1). The
Court will therefore consider Doc. 36 as Plaintiff's
First Amended Complaint (“FAC”).
Eastridge also states that it is “unclear whether the
Court's November 20, 2018 order requiring service of the
Third Amended Complaint constituted screening, or if the
Court will screen the Third Amended Complaint.” (Doc.
43 at 2). The Court considers Doc. 36 as screened by the
November 20, 2018 order (Doc. 39).
survive a Rule 12(b)(6) motion for failure to state a claim,
a complaint must meet the requirements of Rule 8(a)(2). Rule
8(a)(2) requires a “short and plain statement of the
claim showing that the pleader is entitled to relief, ”
so that the defendant has “fair notice of what the . .
. claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Dismissal under Rule 12(b)(6) “can be based on the lack
of a cognizable legal theory or the absence of sufficient
facts alleged under a cognizable legal theory.”
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1988). A complaint that sets forth a
cognizable legal theory will survive a motion to dismiss if
it contains sufficient factual matter, which, if accepted as
true, states a claim to relief that is “plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 570).
Facial plausibility exists if the pleader sets forth
“factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Id. Plausibility does not equal “probability,
” but requires “more than a sheer possibility
that a defendant has acted unlawfully.” Id.
Rule 8's pleading standard demands more than “an
accusation.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555).
party does not need to plead specific legal theories in the
complaint, as long as the opposing party receives notice as
to what is at issue in the lawsuit.” Elec. Constr.
& Maint. Co. v. Maeda Pac. Corp., 764 F.2d 619, 622
(9th Cir.1985) (citing Am. Timber & Trading Co. v.
First Nat'l Bank of Or., 690 F.2d 781, 786 (9th Cir.
1982)). “The complaint should not be dismissed merely
because plaintiff's allegations do not support the legal
theory he intends to proceed on, since the court is under a
duty to examine the complaint to determine if the allegations
provide for relief on any possible theory.” Pruitt
v. Cheney, 963 F.2d 1160, 1164 (9th Cir. 1991),
amended (May 8, 1992) (quoting 5A C. Wright & A.
Miller, Federal Practice and Procedure § 1357
at 336-37 (1990)). Furthermore, “[a] document filed
pro se is ‘to be liberally construed,' and
‘a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.'” Rivera v.
Coventry Health & Life Ins. Co., No.
CV-15-02213-PHX-GMS, 2016 WL 3548763, at *2 (D. Ariz. June
30, 2016) (quoting Erickson v. Pardus, 551 U.S. 89,
94 (2007)). Courts should “continue to construe pro
se filings liberally when evaluating them under
Iqbal.” Hebbe v. Pliler, 627 F.3d
338, 342 (9th Cir. 2010). In ruling on a Rule 12(b)(6) motion
to dismiss, the well-pled factual allegations are taken as
true and construed in the light most favorable to the
nonmoving party. Cousins v. Lockyer, 568 F.3d 1063,
1067 (9th Cir. 2009).
Counts 1 and 3 (Retaliation)
first claim is for “Termination of [his]
employment.” (FAC at 8). Plaintiff states that
termination was “for fear of my health department, etc
agency complaint of t[o]bacco contamination and my sexual
harassment complaint, ” and that he was deemed a
whistleblower and terminated. Id. Plaintiff's
third claim is for “retaliation, ” specifically
stating that “Dexcom and EWS in tandem retaliated
against my whistleblowing and sexual harassment complaint by
terminating me because I was a threat to their profits, I can
imagine.” Id. Since both counts appear to
involve allegations of retaliation because of complaints
filed by Plaintiff, the Court will consider Counts 1 and 3
Eastridge responds that it “cannot reasonably discern
what law it has allegedly violated, ” but acknowledges
that Plaintiff references Title VII of the Civil Rights Act
of 1964 in his complaint. (Doc. 43 at 5). Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. (Title VII), prohibits employers from
discriminating against an employee based on race, color,
religion, sex, or national origin. Title VII also prohibits
retaliation against an employee for (1) opposing an unlawful
employment practice or (2) participating in a Title VII
proceeding. 42 U.S.C. § 2000e-3(a); see also
Crawford v. Metro. Gov't of Nashville & Davidson
County, 555 U.S. 271, 274 (2009) (noting that the first
clause of § 2000e-3(a) is known as the “opposition
clause, ” while the second clause is known as the
“participation clause”). “The filing of a
charge of discrimination with the EEOC is a protected
activity, as is the filing of an internal complaint alleging
a Title VII violation.” Ramirez v. Mitel (Delaware)
Inc., No. CV-16-00029-PHX-DGC, 2017 WL 770010, at *5 (D.
Ariz. Feb. 28, 2017) (citing Bouman v. Block, 940
F.2d 1211, 1228 (9th Cir. 1991)); EEOC v. Go Daddy
Software, Inc., 581 F.3d 951, 963 (9th Cir. 2009)).
Eastridge asserts that Plaintiff's claim regarding his
complaint about smoking too close to the building
“fails to allege an unlawful employment practice
covered by Title VII.” (Doc. 43 at 5). Plaintiff
alleges that “at a company meeting [he] complained that
employees were smoking too close to building.” (FAC at
7). The Court agrees with Defendant Eastridge that
Plaintiff's complaint regarding smoking did not
constitute Plaintiff ...