United States District Court, D. Arizona
Raner C. Collins, Senior United States Magistrate Judge
before the Court is Defendant Pima County's Motion to
Dismiss. (Doc. 16.) Plaintiff has filed a Response
(Doc. 18) and Defendant a Reply (Doc. 19). The Court will
grant the Motion to Dismiss and allow Plaintiff leave to
Standard of Review
motion under 12(b)(6) must contain a “short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). While Rule 8 does not
require detailed factual allegations, “it demands more
than an unadorned, the defendant unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “[A] complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Id. (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible
“when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. The
complaint must contain more than “a statement of facts
that merely creates a suspicion [of] a legally cognizable
right of action.” Bell Atlantic Corp., 550
U.S. at 555. Furthermore, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id.
whether a complaint states a plausible claim for relief [is]
. . . a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. So, although a
plaintiff's specific factual allegations may be
consistent with a constitutional claim, a court must assess
whether there are other “more likely
explanations” for a defendant's conduct.
Id. at 681.
plaintiff “fails to state a claim on which relief may
be granted, ” the District Court must dismiss the
claim. 28 U.S.C. §1915(e)(2)(B)(ii). But, a
“complaint [filed by a pro se litigant] ‘must be
held to less stringent standards than formal pleadings
drafted by lawyers.'” Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam)). While
dismissal is appropriate if the complaint's deficiencies
cannot be cured by amendment, if the pleading can be remedied
through the addition of facts, the claimant should be granted
an opportunity to amend a complaint prior to final dismissal.
Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir.
filed a Complaint on June 11, 2018. (Doc. 1.) Prior to
service of the Complaint, Plaintiff filed a First (Doc. 7)
and Second Amended Complaint (Doc. 8). Then, before Defendant
could file an answer, Plaintiff filed a Third Amended
Complaint. (Doc. 14.) Petitioner has therefore had several
opportunities to add additional facts and streamline her
Third Amended Complaint raises three grounds for relief.
First, Plaintiff alleges discrimination under Title II of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e
et. seq. (Doc. 14 at 1-4.) Second, Plaintiff states
Defendants abused authority and violated Plaintiff's
right to privacy. Id. at 4-5. Third, Plaintiff
states she suffered from adverse employment action and
national origin. Id. at 5-9.
preliminary matter, Plaintiff's second and third grounds
fail to state a claim entitling her to relief. While an
adverse employment action is an element of an employment
discrimination claim, it is not in and of itself a cause of
action. In addition, the abuse of authority and privacy
violation allegations do not raise a cognizable legal theory
and are therefore subject to dismissal. See e.g.,
Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699
(9th Cir. 1990).
claim alleges while working for the Oro Valley Public
Library, an American-born individual, pseudonym Mr. A., was
transferred to the library and received benefits not bestowed
upon Plaintiff. (Doc. 14 at 10-11.) These benefits included:
better choices for work shifts and immediate implementation
of Mr. A.'s suggestions to improve programs at the
library. Id. at ¶¶ 11-13, 15. Defendant
Williams also put pressure on Plaintiff to emulate Mr. A. by
requesting Plaintiff change her method of working with
students, asking her to attend instructor meetings, and
expecting her to adjust her work schedule. Id. at
claims that Ms. Grant terminated her because she
“preferred to work with an American-born program
instructor rather than Plaintiff.” Id. at
¶43. She contends that she should not have been
terminated through her personal email because it was
embarrassing, and doing so showed discriminatory intent.
(Doc. 18 at ¶ 20.) She asserts the proof of
Defendants' discriminatory motive lies in the fact that
Ms. Grant exited a room to discuss Plaintiff's failure to
attend a meeting within hearing of others, requesting
Plaintiff explain her personal reasons for missing the
meeting, and dismissing her despite the emotional stress it
caused Plaintiff. (Doc. 14 at ¶¶ 26, 32, 40,
42-43.) Plaintiff connects her termination with
discrimination because, “Other patrons complained about
Mrs. Grant's and other employees' behavior toward
non-white Americans that either was shared with Plaintiff or
she witnessed them at work. It seemed since Oro Valley branch
is in an upper middle-class area, their employees were less
tolerant toward immigrants” and because
“[Defendants] wanted to hang on with Plaintiff until
they found an American instructor, and then dismiss her
again, same story. That is the reason why more than 85% of
Pima County Library employees are white.” Id.
at ¶¶ 41, 49. Despite these allegations, Plaintiff
simultaneously concedes that her employment was terminated
because she was not available to work the hours that
Defendant needed. Id. at ¶35.
claim that her termination was based on discrimination is
conclusory and insufficient to survive a motion to dismiss.
To sufficiently plead discrimination based on national
origin, a plaintiff must show discriminatory intent. See
Goodwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th
Cir. 1993). When no direct evidence of discriminatory intent
exists, a plaintiff may state a prima facie case
discrimination by alleging plaintiff (1) belongs to a
protected class, (2) was able to adequately perform in her
area of employment, (3) was subjected to an adverse
employment action, and (4) other similarly-situated
individuals were treated more favorably. See Chuang v.
Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115,
1123 (9th Cir. 2000).
has provided no direct evidence that her termination or any
adverse action she suffered was based on her national origin.
Furthermore, her general statements that employees from the
Pima County Public Library are primarily white and that some
employees appeared “less tolerant toward
immigrants” cannot lead the Court to conclude that any
action by Defendants constituted discrimination or
retaliation. She has also failed to show that similarly
situated individuals were treated differently; her admission
that Mr. A. was willing to work hours she was not belies her
allegation that he was similarly-situated. Plaintiff claims
that the “work incidents are examples of how Plaintiff
was judged at work based on her appearance, ” (Doc. 18
at 1) but the Court cannot discern how this is so, and the
Complaint pleads no facts about her appearance and how it
connects to some adverse employment action. Furthermore, the
Court cannot connect any conceivably discriminatory remarks
towards refugee ...