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Holloway v. Eastbridge Workforce Solutions

United States District Court, D. Arizona

March 5, 2019

Germaine Holloway, Plaintiff,
Eastbridge Workforce Solutions, et al., Defendants.



         Pending 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).[1](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).


         This 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.

         In his 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).



         Defendant 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”).

         Defendant 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).

         A. Legal Standard

         To 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 unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

         “A 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).

         B. Counts 1 and 3 (Retaliation)

         Plaintiff's 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 together.

         1. Smoking Complaint

         Defendant 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)).

         Defendant 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 ...

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