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Frisby v. Town of Mammoth

United States District Court, D. Arizona

August 31, 2018

Jose R Frisby, et al., Plaintiffs,
Town of Mammoth, et al., Defendants.



         In their third amended complaint, Plaintiffs Jose Frisby (“Frisby”) and Phillip Smith (“Smith”) (collectively “Plaintiffs”) allege Defendant Don Jones (“Jones”) terminated their employment with the Town of Mammoth (the “Town”) in a manner that deprived Plaintiffs of their Fourteenth Amendment due process rights (Count One) and constituted employment discrimination based on Plaintiffs' Mexican origin (Count Two). (Doc. 29). Defendants Jones and the Town (collectively “Defendants”) now move to dismiss. Since Plaintiffs have failed to allege facts sufficient to support a Monell claim against the Town in Counts One or Two, and have failed to allege facts suggesting Jones' termination of Plaintiffs was discriminatory, as alleged in Count Two, the Court will grant Defendants' motion as to these claims. But since Plaintiffs alleged sufficient facts suggesting Jones terminated their employment without notice and a chance to be heard, Defendants' motion will be denied as to Count One against Jones.


         Despite two prior attempts to coherently state the factual basis for their claims, the allegations in Plaintiffs' Third Amended Complaint are still obscure. That said, Plaintiffs appear to allege the following. Plaintiffs are of Mexican origin. On approximately June 24, 2012, Frisby began working for the Town and, at all relevant times, was working fulltime in a laborer position. (Doc. 29 at 3). Smith began working for the Town in approximately June of 2012 and, at all relevant times, was a permanent full-time classified service employee assigned to the Public Works Department. (Id. at 4).

         Plaintiff allege that, since Frisby and Smith were permanent, full-time employees, the Town's personnel policies specified that they could only be disciplined “for cause” and specified that any involuntary termination would be “subject to prior notice and appeal.” (Id. at 3, 4). The notice and appeal process was to follow a specific format, such that Frisby and Smith were entitled to: (1) “guaranteed written prediscipline notice of any proposed discipline, ” (2) “an opportunity to respond to any proposed discipline, ” (3) “written notice of discipline, ” and (4) “an appeal hearing process which included three distinct appeal decision levels; an initial appeal to the Town Manager or Delegatee, [a] second level consisting of a hearing before an independent Hearing Officer paid for by the Town of Mammoth that must be scheduled and occur within 30 days from the date of the notice of appeal, and a third level to the Mammoth Town Council.” (Id. at 3).

         Plaintiffs allege that, during their employment, they possessed the qualifications required for their jobs and performed their duties in a competent manner. (Id. at 4). Despite this, Plaintiffs allege that on approximately January 29, 2015, Rudy Burrolla (“Burrolla”), then interim Public Works Director, informed Plaintiffs that their employment with the Town was terminated. (Id. at 4). Burrolla did not provide any documentation regarding their termination, and did not follow the Town's policies as set forth above. (Id.). Plaintiffs allege Burrolla terminated Plaintiffs at the direction of his supervisor, Don Jones (“Jones”), who was the Town's Mayor. (Id. at 5-6). Plaintiffs allege that, at the time, Jones was exercising “final policy-making authority for the Town” and had the “authority to direct, control, and ratify” subordinate Burrolla's conduct. (Id. at 6).

         Plaintiffs further allege that, on January 29, 2015, Jones “attended and presided over a meeting of the Mammoth Town Council during which [Jones] told [the council-members] present that [P]laintiffs' employment with the Town of Mammoth had been terminated.” (Id. at 5). Plaintiffs allege that, in doing so, Jones was acting as a “managing agent” with “final policy making authority” for the Town. (Id. at 2; 5). However, although Plaintiffs allege Jones was acting with “final policy making authority” at this meeting, Plaintiffs also inconsistently allege that, at the same Town Council meeting, the Mammoth Town Council acted with “final policy-making authority” and “ratified” Jones' decision to terminate Plaintiffs. (Id. at 5).

         Following the January 29, 2015, meeting, Plaintiffs allege they were given a written memo “describing the January 29, 2015 terminations as a suspension without pay pending a Notice of Recommended Termination with a meeting scheduled for February 10, 2015.” (Id. at 5). Plaintiffs do not allege who sent this memo, and also do not allege whether a meeting in fact occurred on February 10, 2015, and, if so, what transpired during it. Plaintiffs do, however, allege that they received a letter dated February 19, 2015, notifying them that their employment had been terminated. (Id.). Once again, Plaintiffs do not indicate who made the termination decision, who drafted the termination letter, or when the termination decision was made.

         Plaintiffs then allege that, on approximately February 25, 2015, Plaintiffs submitted written appeals regarding their termination and suspension without pay. (Id. at 6). Plaintiffs allege they hand-delivered their appeals to the clerk, S. Lopez, who worked at the Mammoth Town Hall on behalf of the Mammoth Town Clerk. (Id.). Allegedly, the Town never contacted Plaintiffs, never provided Plaintiffs with an appeal process, and never provided Plaintiffs with an appeal hearing. (Id.). Plaintiffs allege these failures were “the result and product of a policy, practice, and/or custom of [the Town and Jones], ” and then reiterate that Jones-not the Town Council-was, at all relevant times, “vested by the Mammoth Town Council to exercise final policy-making authority.” (Id.).

         Following their termination, Plaintiffs initiated this suit, naming both Jones and the Town and alleging violations of due process and claims of discrimination. Defendants then filed a motion to dismiss. The Court denied the motion as to Plaintiffs' claim against Jones for his alleged termination of Plaintiffs without notice and a chance to be heard, but granted Defendants' motion as to the remainder of Plaintiffs' claims. (Doc. 26). In doing so, the Court gave Plaintiffs one final opportunity to amend. (Id.).

         Plaintiffs then filed their Third Amended Complaint (the “complaint”) alleging two counts against Jones and the Town.[1] Plaintiffs' first claim is brought pursuant to 42 U.S.C. § 1983 and alleges the Town's and Jones's actions deprived Plaintiffs of their employment in violation of their due process rights under the Fourteenth Amendment. Plaintiffs' second claim is brought pursuant to 42 U.S.C. § 1981 and alleges the Town's and Jones's decisions to suspend and/or terminate Plaintiffs constituted employment discrimination based on their Mexican origin. (Id. at 7-8). Defendants now move to dismiss each claim.


         To survive a motion to dismiss for failure to state a claim, a complaint must include a “short and plain statement of the claim showing that the pleader is entitled to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Fed. R. of Civ. P. 8(a)(2); see also Ashcroft v. Iqbal, 556 U.S. 662, 696 (2009) (The complaint must contain “enough facts to state a claim to relief that is plausible on its face.”). This requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Instead, “[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.” Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012) (quoting Iqbal, 556 U.S. at 678). When evaluating a motion to dismiss, a court accepts all factual allegations as true and draws all reasonable inferences therefrom, but need not accept legal conclusions. See Twombly, 550 U.S. at 555; Coal. for ICANN Transparency, Inc. v. VeriSign, Inc., 611 F.3d 495, 501 (9th Cir. 2009); Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1296-98 (9th Cir. 1998).

         I. Count One: 42 U.S.C. ยง 1983 - Due Process under ...

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