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McCauley v. Fry's Food & Drug Stores, Inc.

United States District Court, D. Arizona

November 8, 2019

Norma O. McCauley, Plaintiff,
Fry's Food & Drug Stores, Inc., d/b/a Fry's Marketplace, et al., Defendants.


          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.


         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.)


         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 ...

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