United States District Court, D. Arizona
ORDER
Honorable Susan M. Brnovich, United States District Judge.
Pending
before the Court is Defendant Mountain View Tours, Inc.'s
Motion to Dismiss Plaintiff's Complaint for Failure to
State a Claim. (Doc. 12, “Mot.”) The Court has
considered the pleadings, (Doc. 10, “Amended
Complaint” or “AC”; Doc. 13,
“Resp.”; Doc. 14, “Reply”), and
enters the following Order.
I.
BACKGROUND
Michael
Bellesfield (“Bellesfield”) drove buses for
Mountain View Tours, Inc. (“Mountain View”), a
tour bus company operating out of the Kingman, Peach Springs,
and Grand Canyon West areas of Mohave County, Arizona. Hired
on March 21, 2018, Bellesfield alleges sexually inappropriate
behavior directed at him by fellow employees began shortly
thereafter. Among other things, Bellesfield alleges he was
inappropriately touched on three occasions, one in the
presence of his supervisor. In the first instance, in June of
2018, a fellow driver Debbie Selders “slid up to
Bellesfield while he sat on a bench” and made
“full contact with [his] body.” (AC ¶ 9.)
Selders then grabbed Bellesfield's arm and rubbed it
against her chest. (Id.) Pressing her thigh against
his, Selders gave Bellesfield her phone number.
(Id.) Bellesfield's supervisor, Joe Maestras,
witnessed the incident, commenting approvingly afterwards,
“man, she just gave you her phone number!”
(Id.) On the second occasion, Selders-who had since
engaged in a widely known extramarital affair with a
different co-worker, William Brazell-thrust her chest into
Bellesfield while he sat a workbench, saying she “had
splattered chocolate on her blouse” while
“running her fingers over her breasts.”
(Id. ¶13.) Aside from these sexual assault
allegations, Bellesfield alleges numerous instances of sexual
harassment, including unwanted flirtation and sexual advances
involving crude sexual innuendo. (See Id. ¶ 9
(Selders commenting to a cornered Bellesfield: “At
least I can do something with my mouth”); see also
Id. ¶¶ 11-12 (alleging generally
“obnoxious, sexually charged” behavior by Selders
and Brazell including yells of “I love you”,
comments mocking Bellesfield's “virgin ears”,
and insinuating comments that Selders “ate
[Brazell's] yogurt” at lunch.) She repeated this
behavior the following day. (Id. ¶ 11.)
Bellesfield ignored these advanced. (Id. ¶ 9,
13), instead reporting the behavior to his supervisor,
“but nothing was done.”[1] Ultimately, Bellesfield
complained by letter and email to President of Mountain View
Tours, Inc., Gregory P. Conser, but was told “to endure
the antics or resign.” (Id. ¶ 12.)
Mountain View fired Bellesfield the following week. (See
id.)
Plaintiff
filed the current lawsuit on March 27, 2019 alleging a
Hostile Work Environment, (42 U.S.C. § 2000e-(2)(a);
A.R.S. 41-1464(B)), and Retaliation, (42 U.S.C. §
2000e-(2)(a)(i); A.R.S. 41-1464(A)), claims under both
federal and state law. He seeks compensatory and punitive
damages in addition to injunctive relief. (AC ¶¶
13-15.)
II.
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 enough 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.
“Where 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).
III.
DISCUSSION
a.
Hostile Work Environment Claims
A
hostile work environment claim under Title VII requires a
plaintiff allege: (1) that he was subjected to verbal or
physical conduct of a harassing nature; (2) that this conduct
was unwelcome; and (3) that the conduct was sufficiently
severe or pervasive to alter the conditions of the
victim's employment and create an abusive working
environment. Arizona ex rel. Horne v. Geo Grp.,
Inc., 816 F.3d 1189, 1206 (9th Cir. 2016) (quoting
Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1109-10
(9th Cir.2000)). “Conduct must be extreme to amount to
a change in the terms and conditions of employment.”
Id. (quoting Montero v. AGCO Corp., 192
F.3d 856, 860 (9th Cir.1999)). To determine whether an
environment is sufficiently hostile or abusive, courts look
“at all the circumstances, including the frequency of
the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee's work performance.” Kortan, 217
F.3d at 1110 (quoting Faragher v. City of Boca
Raton, 524 U.S. 775, 787-88 (1998)) (internal quotation
marks omitted). While “simple teasing, offhand
comments, and isolated incidents (unless extremely serious)
are not sufficient to create an actionable claim under Title
VII . . . the harassment need not be so severe as to cause
diagnosed psychological injury.” Fuller v. Idaho
Dept. of Corr., 865 F.3d 1154, 1161-62 (9th Cir. 2017)
(citing Reynaga v. Roseburg Forest Prods, 847 F.3d
678, 687 (9th Cir. 2017) (internal quotation marks omitted).
Plaintiff
must demonstrate that the work environment was both
subjectively and objectively hostile. See Nichols v.
Azteca Rest. Enters., Inc., 256 F.3d 864, 872.
Bellesfield does neither. The conduct alleged is too isolated
and insufficiently severe to support a Title VII hostile work
environment claim. And although Bellesfield characterizes his
co-workers conduct as “extremely offensive and
unwelcome, ” he does not allege that he was physically
threatened, humiliated, or identify any interference with his
job performance. (AC ¶ 12); see also Kortan,
217 F.3d at 1110.
Although
Maestras apparent blindness to alleged instances of sexual
assault and tacit approval of the outwardly sexual nature of
Selder and Brazell's professional relationship is
worrying, much of the alleged conduct primarily involves the
relationship of Bellesfield's co-workers. Generally,
alleging an affair between co-workers creates a sexually
charged atmosphere is insufficient to qualify as a hostile
work environment. See Candelore v. Clark Cty. Sanitation
Dist., 975 F.2d 588, 590 (9th Cir. 1992). Brazell and
Selder public professions that they love and kiss each other,
and their coordination of leave is insufficiently severe to
create a hostile work environment. See Arizona ex rel.
Horne v. Geo Grp., Inc., 816 F.3d at 1206. Further,
outside of the incidents of alleged physical contact from
Selders, the alleged conduct are examples of “simple
teasing, offhand comments, and isolated incidents” of
insufficient severity to create an actionable claim under
Title VII. Reynaga, 847 F.3d at 687 (quoting
Faragher, 524 U.S. at 788, 118 S.Ct. 2275 (internal
quotation marks omitted)). The alleged incidents of
Selder's physical contact with Bellesfield are concerning
but too isolated to create a hostile or abusive work
environment.[2] Bellesfield does not allege these
incidents or the alleged “sexually charged” work
environment unreasonably interfered with his job performance,
or that they were physically threatening. See
Kortan, 217 F.3d at 1110.
An
employer may be held liable for creating a hostile work
environment either vicariously or through negligence. See
McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1119 (9th
Cir. 2004). Mountain View contends otherwise, arguing that
even if Bellesfield's allegations supported a hostile
work environment claim, they are insufficient to establish
liability. The Court finds otherwise. An employer is
vicariously liable for a hostile work environment created by
a supervisor. Vance v. Ball State Univ., 570 U.S.
421, 424, 133 S.Ct. 2434, 186 L.Ed.2d 565 (2013). Here,
taking Bellesfield's alleged facts as true and assuming
arguendo a hostile work environment,
Bellesfield's supervisors condoned or tacitly approved of
employee misconduct that created the hostile work
environment. An employer is also liable for a hostile work
environment created by a plaintiff's co-worker if the
employer “knew, or should have known, about the
harassment and failed to take prompt and effective remedial
action.” E.E.O.C., 621 F.2d at 882.
Bellesfield identifies multiple instances were supervisors
had direct or constructive knowledge of co-worker misconduct
and harassment but failed to take any remedial actions. Thus,
the factual allegations support Mountain View's
liability, but fall short of alleging an actionable hostile
work environment claim under Title VII.
b.
...