Zolfo v. Westminster Vill. Inc.

Giovanna P. Zolfo, Plaintiff, v. Westminster Village Incorporated, Defendant.

No. CV-19-05645-PHX-SPL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

October 27, 2020

ORDER

Before the Court is Defendant Westminster Village Incorporated's Motion to Dismiss (Doc. 44) filed pursuant to Fed. R. Civ. P. 12(b)(6). The Motion is fully briefed and ready for consideration. (Docs. 44, 45, 50, & 53). For the following reasons, the Motion will be granted.

I. BACKGROUND

This case arises out of Plaintiff's time spent as an employee of Defendant. (Doc. 40 at 1). On July 22, 2013, Plaintiff injured her ankle at work. (Doc. 40 at 1). Plaintiff was cleared to return to work in a restricted capacity the next month. (Doc. 40 at 1). For several months, Plaintiff and Defendant disagreed on what constituted a reasonable accommodation for Plaintiff. (Doc. 40 at 4-11). Plaintiff also alleges Defendant engaged in "sex stereotyping" by urging her to dress more femininely. (Doc. 40 at 6-9). The disputes continued, and ultimately, Plaintiff left in March of 2015 and did not return to work. (Doc. 40 at 10). Plaintiff's employment benefits were cancelled on April 1, 2017. (Doc. 40 at 11).

On April 20, 2015, Plaintiff filed her first charge of discrimination with the EEOC. (Doc. 50-1 at 2-3). In the charge, Plaintiff alleged gender discrimination and failure to accommodate claims under both the Americans with Disabilities Act ("ADA") and Title VII of the Civil Rights Act of 1964. (Doc. 50-1 at 2-3). On February 23, 2016, Plaintiff filed a second charge with the EEOC. (Doc. 50-1 at 5). The second charge alleged retaliation and hostile work environment allegations based on acts that occurred after the filing of the first charge. (Doc. 50-1 at 5). Plaintiff received her right to sue letter from the EEOC on August 28, 2019. (Doc. 40 at ¶ 8).

On November 11, 2019, Plaintiff filed the Complaint in this Court, alleging violations under the ADA and Title VII. (Doc. 1). After conferring with Defendant, Plaintiff filed a First Amended Complaint (the "FAC") on February 3, 2020. (Doc. 13). In the FAC, consistent with the substantive allegations in the original Complaint, Plaintiff alleged Defendant initially provided her with the necessary accommodations for her to perform her work tasks but thereafter refused to continue providing them. (Doc. 13 at 1-2). In addition, Plaintiff separately alleged Defendant discriminated against her based on her gender.¹ (Doc. 13 at 17-15).

On July 15, 2020, this Court dismissed the FAC without prejudice for Plaintiff to file a Second Amended Complaint (the "SAC"). (Doc. 38). The Court instructed Plaintiff to file the SAC because the FAC "lumped all the allegations under the ADA into one count and has done the same under Title VII" and, thus, it "constitute[d] impermissible pleading because Plaintiff must prove different elements for each of the four claims asserted." (Doc. 38 at 3). On July 28, 2020, Plaintiff filed the SAC. (Doc. 40).

Most relevantly, the FAC had allegations of hostile work environment woven into the other claims. Thus, the SAC adds claims for "creating a hostile work environment in violation of Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112" (Doc. 40 at 1, 14-16) and "creating a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1)" (Doc. 40 at 2, 20-21).

The SAC now sets forth four causes of action. (Doc. 40). Plaintiff sets forth two claims under the ADA: One claim for failure to provide reasonable accommodations for her ankle injury (Count One) and one claim for hostile work environment based on her disability (Count Two). (Doc. 40 at 12-16). Plaintiff also sets forth two claims under Title VII: One sex stereotyping claim (Count Three) and one hostile work environment claim based on her sex (Count Four). (Doc. 40 at 14-21).

On August 18, 2020, Defendant filed a second Motion to Dismiss pursuant to Rule 12(b)(6), now before the Court. (Doc. 44).

II. STANDARD OF REVIEW

To survive a motion to dismiss, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief so that the defendant is given fair notice of the claim and the grounds upon which it rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2)). A court may dismiss a complaint for failure to state a claim under Rule 12(b)(6) for two reasons: (1) lack of a cognizable legal theory, or (2) insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). When deciding a motion to dismiss, all allegations of material fact in the complaint are taken as true and construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009).

III. EXHAUSTION AND TIMELINESS

Persons seeking to file claims under Title VII or the ADA must first file a charge with the Equal Employment Opportunity Commission ("EEOC"). See generally Fort Bend County, Texas v. Davis, 587 U.S. ___ (2019); EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994); 42 U.S.C. § 2000e-5(c). The claims in the plaintiff's complaint must match the allegations in the EEOC charge or must be "like or reasonably related" to those allegations. B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1100 (9th Cir. 2002), as amended (Feb. 20, 2002) (internal quotations omitted); see also Josephs v. Pac. Bell, 443 F.3d 1050, 1061-62 (9th Cir. 2006) (the ADA claims in the plaintiff's complaint must match theallegations in the EEOC charge or be "reasonably expected" to grow out of those allegations). Although the language of EEOC charges should be construed "with utmost liberality since they are made by those unschooled in the technicalities of formal pleading," the "crucial element" of a discrimination charge "is the factual statement contained therein." B.K.B. v, 276 F.3d at 1100. Thus, if allegations in the Complaint are not reasonably related to the allegations in the EEOC charge, they fail for lack of administrative exhaustion.

The Ninth Circuit has held that "the continuing violations doctrine . . . allows courts to consider conduct that would ordinarily be time barred as long as the untimely incidents represent an ongoing unlawful employment practice." Morgan v. Nat'l R.R. Passenger Corp., 232 F.3d 1008, 1014 (9th Cir. 2000) (internal citations omitted). In National R.R. Passenger Corp. v. Morgan, however, the US Supreme Court held that the Ninth Circuit's "continuing violations doctrine" only applies to hostile work environment claims, because "[t]heir very nature involves repeated conduct." 536 U.S. 101, 115 (2002). Thus, "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. at 102 (emphasis added); see also Bird v. Dep't of Human Servs., 935 F.3d 738, 748 (9th Cir. 2019) (holding that, after the Supreme Court Morgan decision, "little remains of the continuing violations doctrine[, e]xcept for a limited exception for hostile work environment claims"). Thus, allegations of discrete acts that occurred before the 300-day window are untimely.

A. Sex stereotyping and failure to accommodate claims

1. Failure to accommodate claim

An employer's refusals to accommodate an employee's disability, unlike the creation of a hostile work environment, are discrete employment acts. See, e.g., Hall v. Fluor Hanford, Inc., No. CV-08-5029-EFS, 2009 WL 10675273, at *2 (E.D. Wash. June 1, 2009) ("a failure to accommodate is itself a discrete act"); Porter v. California Dep't of Corr., 419 F.3d 885, 893 (9th Cir. 2005) (considering "refusing to grant [employee]'s requests for vacation or holidays, . . . threatening disciplinary action while she was onmedical leave, leaving a negative performance evaluation in her personnel file, and instructing her to enter the work site through the back gate" to be a discrete employment acts). Thus, any allegations of Defendant's failure to accommodate Plaintiff's disability which occurred before the 300-day window are time-barred.

Plaintiff's April 20, 2015 EEOC charge (attached to Plaintiff Response as Exhibits 1) alleges that Defendant "has never allowed [her] to [her] work restrictions provided by [her] medical practitioners." (Doc. 50-1 at 2). The charge further alleged that Defendant "denied [her] reasonable accommodations for [her] condition and additionally because [Defendant] has in the past not adhered to the restrictions, [her] medical condition has become worse and now requires surgery." (Doc. 50-1 at 2). Plaintiff's second EEOC charge, filed on February 23, 2016 (attached to Plaintiff Response as Exhibits 2), alleges that Plaintiff's "job duties were changed to increase [her] walking and standing, which directly contradicted [her] accommodation request." (Doc. 50-1 at 5).² Because the first EEOC charge was filed on April 20, 2015, any failure to accommodate that occurred before June 24, 2014 (300 days before the charge) will not be considered.

Here, the SAC alleges that Plaintiff saw doctor in August of 2013 who gave her certain accommodations, which included sitting for portions of the workday. (Doc. 40 at 12). Plaintiff alleges she "immediately returned to work," and was given a chair to sit in, but when she used it her supervisor yelled "why are you sitting down." (Doc. 40 at 4-3); see also (Doc. 40 at 12) (alleging that Plaintiff's supervisor "yelled at Plaintiff when she adhered to her restrictions and utilized the accommodation provided by upper management"). Assuming these comments from her supervisor were made within a year of Plaintiff's doctor's visit and before her May 2014 FMLA leave (as the SAC would suggest), these discrete acts occurred before June 24, 2014 and therefore cannot be considered by this Court.

Additionally, Plaintiff alleges that in August 2014, Defendant "reassigned Plaintiff to...