United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.
before the Court is Defendant Swift Transportation
Company's (“Defendant”) Motion to Dismiss
Plaintiff Isaiah Hoover's (“Plaintiff”) First
Amended Complaint, (Doc. 13). (Doc. 23). Plaintiff has
responded, (Docs. 27 & 28), and Defendant has replied,
(Doc. 33). Plaintiff has also filed a Motion to Amend the
First Amended Complaint, (Doc. 25), as well as a supporting
exhibit, (Doc. 29), and a memorandum, (Doc. 31). Defendant
has responded to Plaintiff's Motion to Amend, (Doc. 34),
and Plaintiff has not replied. The Court now rules on the
Court first briefly recounts Plaintiff's allegations.
Broadly speaking, Plaintiff organizes his allegations around
Defendant's failure to investigate or respond to the
actions of three employees: Ken, Timmy Dale, and Gustavo.
(See Doc. 13).
who is African-American, alleges that Ken, a manager with an
unknown last name, verbally abused him during training by
repeatedly calling him “boy”-a word historically
used as a racial epithet (Id. at 2). Plaintiff also
alleges that after he reported Ken's conduct to the human
resources department, Plaintiff's next trainer told
Plaintiff that he did not want to train Plaintiff anymore and
requested Plaintiff's transfer to another truck.
(Id. at 3).
Timmy Dale was assigned to be Plaintiff's trainer.
(Id. at 4). Plaintiff alleges that Dale: asked
Plaintiff to drive beyond his “hours of
services;” became verbally abusive in response to
Plaintiff opening a can of tuna before spraying a bottle of
air freshener in his face; and threatened retaliation, using
racial slurs, when Plaintiff decided to report him to human
resources. (Id. at 4-5). Plaintiff also alleges that
the morning after reporting Dale's behavior to a
supervisor, the supervisor issued a disciplinary warning to
Plaintiff and had him transferred to another truck.
(Id. at 5-6).
Plaintiff's allegations, however, concern Gustavo.
(Id. at 6-12). Among other things, Plaintiff alleges
that he repeatedly refused Gustavo's unwelcome sexual
advances. (Id. at 7-9). He also alleges that Gustavo
complained that “[t]he worst part of his [j]ob is
training Black Ethiopian men, [b]ecause of their [o]dor,
accents, and they can't [d]rive.” (Id. at
9). According to Plaintiff, Gustavo kept an ornament
depicting “[t]hree black [m]onkeys . . . swinging from
. . . nooses across his dash board [sic].”
(Id.). Plaintiff describes an episode where Gustavo
became physical with him by forcefully taking a communication
device from his hand after he had decided to report
Gustavo's behavior. (Id. at 10). He also claims
that Gustavo intentionally gave him lower scores on driving
exams, and even damaged his own truck, in his effort to
hinder Plaintiff's workplace success. (Id. at
10-11). Plaintiff reported this to the human resources
department, but he alleges they took no action and he was
ultimately fired. (Id. at 11-12).
on these allegations, Plaintiff contends that Defendant
discriminated against him on the basis of race and sex in
violation of Title VII of the Civil Rights Act of 1964.
Plaintiff also appears to allege a claim for intentional
infliction of emotional distress based on the same underlying
conduct. Defendant now moves to dismiss the complaint under
Federal Rule of Civil Procedure (“Rule”)
12(b)(6), arguing that Plaintiff's Title VII claims are
time-barred and that his intentional infliction of emotional
distress claim is not sufficiently pleaded.
claim either lacks a cognizable legal theory or alleges
insufficient facts under a cognizable legal theory, the Court
must grant a motion to dismiss for failure to state a claim.
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990). Only a complaint that satisfies
Rule 8(a)(2)'s requirement of “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” will survive a Rule 12(b)(6) motion.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Rule 8 requires a complaint to plead sufficient facts
to “state 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). A
complaint shows facial plausibility by pleading factual
content that allows the Court to draw reasonable inferences
as to the defendant's liability. Id. (quoting
Twombly, 550 U.S. at 556). But when
“a complaint pleads facts that are ‘merely
consistent with' a defendant's liability, it
‘stops short of the line between possibility and
plausibility of ‘entitlement to relief.'”
Id. (quoting Twombly, 550 U.S. at 557). In
ruling on the motion, the Court must take as true all
well-pleaded factual allegations but need not accept
conclusory statements. Id.
Court may also grant a motion to dismiss when it is clear
from the face of the complaint that a plaintiff's claims
fall outside the applicable statute of limitations.
Jablon v. Dean Witter & Co., 614 F.2d 677, 682
(9th Cir. 1980). “A court should not dismiss a
complaint unless [the] plaintiff cannot plausibly prove a set
of facts demonstrating the timeliness of the claim.”
Ranch Realty, Inc. v. DC Ranch Realty, LLC, 614
F.Supp.2d 983, 987 (D. Ariz. 2007). Dismissal is warranted
“only if the assertions of the complaint, read with the
required liberality, would not permit the plaintiff to prove
that the statute was tolled.” Morales v. City of
Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000)
(quoting TwoRivers v. Lewis, 174 F.3d 987, 991 (9th
Cir. 1999)). “Because the applicability of the
equitable tolling doctrine often depends on matters outside
the pleadings, it ‘is not generally amenable to
resolution by a Rule 12(b)(6) motion.'”
Supermail Cargo, Inc. v. United States, 68 F.3d
1204, 1206 (9th Cir. 1995) (quoting Cervantes v. City of
San Diego, 5 F.3d 1273, 1276 (9th Cir. 1993)).
argues that Plaintiff's Title VII claim must be dismissed
because he filed his complaint more than 90 days after the
EEOC notified Plaintiff of his right to sue, meaning his
claim is barred by the statute of limitations. (Doc. 23 at
5). Plaintiff appears to assert that his late filing was ...