United States District Court, D. Arizona
Norma O. McCauley, Plaintiff,
v.
Fry's Food & Drug Stores, Inc., d/b/a Fry's Marketplace, et al., Defendants.
ORDER
Dominic W. Lanza, United States District Judge
Pending
before the Court is Defendant Fry's Food & Drug
Stores (“Fry's”) motion to dismiss pro se
Plaintiff Norma McCauley's second amended complaint
(“SAC”), as well as McCauley's motion for
leave to file a third amended complaint (“TAC”).
For the following reasons, the motion to dismiss will be
granted, the motion for leave to amend will be denied, and
this action will be terminated.
BACKGROUND
A.
Procedural Background
On
November 11, 2018, McCauley initiated this action by filing a
complaint (Doc. 1) and a motion for leave to proceed in forma
pauperis (“IFP”) (Doc. 2).
On
January 10, 2019, after screening the complaint pursuant to
28 U.S.C. § 1915, the Court issued an order granting the
IFP request but dismissing the complaint, with leave to
amend, because it was illegible and failed to adequately
plead the existence of subject matter jurisdiction. (Doc. 7.)
On
January 18, 2019, McCauley filed a first amended complaint.
(Doc. 8.)
On
January 23, 2019, McCauley filed the SAC. (Doc. 9.)
On
January 24, 2019, the Court issued an order stating that,
although McCauley's filing of the SAC was procedurally
improper, she would be given retroactive authorization to
file it. (Doc. 10.) This order further instructed McCauley
“to follow the Federal and Local Rules in the future,
including seeking leave from the Court (or written consent
from all Defendants) before filing any additional amended
complaints.” (Id. at 2.)
On May
22, 2019, Fry's filed a motion to dismiss the SAC. (Doc.
26.)[1]
On
September 5, 2019, McCauley-who had requested and received
several extensions of time (Docs. 27-30)-filed a response to
the motion to dismiss. (Doc. 31.)
On
September 27, 2019, Fry's filed a reply in support of its
motion. (Doc. 34.)
Four
days later-on October 1, 2019-McCauley filed a motion for
leave to file a TAC. (Doc. 35.) Fry's then filed a
response and McCauley filed a reply (Docs. 36, 37).
B.
Underlying Facts
The
facts alleged in the SAC (Doc. 9) and in McCauley's
charge of discrimination to the Equal Employment Opportunity
Commission (“EEOC”) (Doc. 19-1)[2] are not a model
of clarity. Below, the Court has attempted to summarize those
facts, which are assumed to be true for purposes of the
motion to dismiss.
In
2005, McCauley began working at Fry's as a clerk in the
Home Department. (Doc. 19-1 at 2.) McCauley is “female,
” “African American, ” and was born in
1959. (Doc. 9 at 4-5.)
In or
around 2012, McCauley's immediate supervisor, “Art,
” who is “Caucasian, male, ” became aware
that McCauley was over 50 years old. (Doc. 9 at 5; Doc. 19-1
at 2.) Afterward, Art mistreated McCauley in a variety of
ways:
▪ First, Art refused to train McCauley on the
store's new computer system, even though she was
qualified to work on this system and another supervisor
instructed Art to provide training to her. (Doc. 9 at 5.) Art
also refused to train another one of McCauley's
co-workers who was over 50 years old. (Id.) The only
co-workers who received computer training from Art were under
50 years old. (Id.)
▪ Second, Art asked McCauley to transfer to the Deli
Department. (Doc. 19-1 at 2.) When McCauley refused the
transfer request (and other subsequent requests) because a
transfer would result in a loss of seniority benefits, Art
reduced McCauley's hours “from 40 hours to 20
hours.” (Doc. 9 at 5; Doc. 19-1 at 2.) The resulting
loss of income caused McCauley to “lose [her] apartment
unit and medical insurance.” (Doc. 9 at 5.)
▪ Third, Art also changed McCauley's work schedule
“11 times” following her refusal to accept the
transfer, such that she “had to arrive at work and wait
six (6) hours prior to [her] start time, even though [she]
was only scheduled to work four (4) hours.” (Doc. 9 at
5; Doc. 19-1 at 2.) “[O]ther male younger
Caucasian clerks, with significantly less seniority . . .
were given preferential treatment in that they were allowed
to choose their work schedule, given more hours and
overtime.” (Doc. 19-1 at 2.) The change in
McCauley's work schedule made it impossible for her to
take public transportation, which required her to walk, which
in turn “aggravated [her] medical condition.”
(Id.) The change in work schedule also forced
McCauley to do her job without proper sleep. (Doc. 9 at 5.)
▪ Fourth, one of Art's friends falsely accused
McCauley of fighting. (Doc. 9 at 5.) When the union
investigated this claim, “no fighting [was]
found.” (Id.)
▪ Fifth, when McCauley asked Art to provide her with
training on “company procedures, ” because such
training “would have enhanced [her] career with
Fry's, ” Art refused her request and instead
“gave a younger, lighter-skinned bi-racial
(Black/Hispanic) male clerk, the same opportunities and
benefits that [McCauley] was denied.” (Doc. 19-1 at
3.)[3]
Beginning
in 2013, and “on a continuous basis” afterward,
McCauley filed charges of discrimination against Fry's
with the Arizona Attorney General's Office, Civil Rights
Division. (Doc. 19-1 at 3.)
In
February 2015, McCauley “went on a medical leave of
absence due to my medical condition.” (Doc. 19-1 at 3.)
It appears, although it's not clear, that the medical
leave related to McCauley's loss of her toe and partial
loss of her foot. (Doc. 9 at 5.) Additionally, at some point
after February 2016, McCauley began to suffer from
“partial blindness” due to an allergic reaction
to blood thinners. (Id. at 4-5.)
In
February 2016, Fry's discharged McCauley. Although the
SAC does not allege why Fry's made the termination
decision-it offers only the temporal observation that
“Fry's fired me after losing my toe and partial
foot” (Doc. 9 at 5) and focuses mostly on the alleged
acts of discrimination that preceded the firing-McCauley
asserted in her EEOC charge that Fry's “discharged
me because I was on a medical leave of absence for one (1)
year.” (Doc. 19-1 at 3.)
On July
20, 2016, McCauley filed a charge of discrimination with the
EEOC. (Doc. 19-1.)
On
September 17, 2018, the EEOC opted not to pursue charges
against Fry's and provided McCauley with a right-to-sue
letter. (Doc. 1 at 6.)
DISCUSSION
I.
Motion to Dismiss
Fry's
moves to dismiss the complaint because (1) all claims, except
the apparent wrongful discharge claim under the Americans
with Disabilities Act (“ADA”), are time-barred
because McCauley failed to file an EEOC charge within 300
days of the challenged conduct, and (2) the ADA claim fails
under Rule 12(b)(6). (Doc. 19.)
A.
Legal Standard
“[T]o
survive a motion to dismiss, a party must allege
‘sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.'”
In re Fitness Holdings Int'l, Inc., 714 F.3d
1141, 1144 (9th Cir. 2013) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). “A claim has
facial plausibility 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. (quoting Iqbal, 556 U.S. at 678).
“[A]ll well-pleaded allegations of material fact in the
complaint are accepted as true and are construed in the light
most favorable to the non-moving party.” Id.
at 1144-45 (citation omitted). However, the court need not
accept legal conclusions couched as factual allegations.
Iqbal, 556 U.S. at 679-80. The court also may
dismiss due to “a lack of a cognizable legal
theory.” Mollett v. Netflix, Inc., 795 F.3d
1062, 1065 (9th Cir. 2015) (citation omitted).
Although
the Iqbal pleading standard applies to pro se
complaints, they “must be held to less stringent
standards than formal pleadings drafted by lawyers.”
Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)
(citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
Courts “have an obligation where the petitioner is pro
se, particularly in civil rights cases, to construe the
pleadings liberally and to afford the petitioner the benefit
of any doubt.” Bretz v. Kelman, 773 F.2d 1026,
1027 n.1 (9th Cir. 1985). But while entitled to “great
leeway, ” a pro se litigant's pleadings
“nonetheless must meet some minimum threshold in
providing a defendant with notice of what it is that it
allegedly did wrong.” Brazil v. U.S. Dep't of
Navy, 66 F.3d 193, 199 (9th Cir. 1995).
B.
Time-Barred Claims
The SAC
asserts claims for race, sex, age, and disability
discrimination. (Doc. 9 at 4.) Fry's argues that all of
these claims, except for any claim arising from
McCauley's termination, are time-barred. (Doc. 19 at
4-6.)
“Title
VII requires that a plaintiff timely file charges of
discrimination with the EEOC and receive a right to sue
letter from the EEOC prior to bringing a Title VII claim in
federal court.” Taxey v. Maricopa Cty., 237
F.Supp.2d 1109, 1113 (D. Ariz. 2002). Such a charge is timely
if made “by or on behalf of the person aggrieved within
three hundred days after the alleged unlawful employment
practice occurred.” 42 U.S.C. § 2000e-5(e)(1).
Here,
McCauley filed her EEOC charge on July 20, 2016. (Doc. 19-1
at 3.) Thus, for an unlawful employment practice to be
actionable in the present lawsuit, it ...