JAMES A. TEILBORG, District Judge.
Pending before the Court is Defendants Park Electrochemical Corporation and Park Advanced Product Development Corporation's ("Defendants") Motion to Dismiss. (Doc. 20). The Court now rules on the motion.
Plaintiff's Second Amended Complaint ("Complaint") contains the following factual allegations, which the Court accepts as true for the purposes of Defendants' Motion to Dismiss.
Early in 2010, Ke Wang become Plaintiff's new supervisor. (Id. at ¶ 9). Under Wang's supervision, Plaintiff alleges various incidents in which Wang acted inappropriately, including that Wang: (1) "belittled and insulted" her in front of others; (2) criticized and yelled at her unnecessarily; (3) blamed her for problems beyond her control; and (4) on one occasion physically forced himself into Plaintiff's office by "put[ing] his foot onto the middle of the door, forcing his way in, [and] pushing [Plaintiff's] hand off the door." (Id. at ¶¶ 9-26). Plaintiff also alleges that manager Greg Westphal repeatedly ignored her attempts to report Wang's behavior, and instead blamed Plaintiff as the source of the problems. (Id. at ¶ 16).
Plaintiff reported Westphal and Wang's behavior to Westphal's boss, Sue Macaluso. (Id. at ¶¶ 16, 20). Macaluso stated that she would discuss the situation with Westphal and "handle the situation" with Wang. (Id. at ¶¶ 20, 26). After the incident in which Wang forced himself into Plaintiff's office, Plaintiff alleges she was "afraid that Wang would become physically violent with her." (Id. at ¶ 26). Consequently, Plaintiff spoke with Human Resources Coordinator Joan Couet and filed a written complaint. (Id.). Couet forwarded Plaintiff's written complaint to Macaluso and Westphal, who subsequently met with Plaintiff to hand her a "disciplinary warning." (Id. at ¶ 27). The warning Plaintiff received included several allegations of poor work performance and violations of company policy, all of which Plaintiff denies. (Id.). Plaintiff alleges that no action was taken against Wang, and Plaintiff was terminated on February 28, 2011. (Id. at ¶¶ 29-30). Plaintiff then filed a claim with the Equal Employment Opportunity Commission ("EEOC") and received a right-to-sue notice on May 19, 2011. (Doc. 20-1 at 5).
Plaintiff's Complaint alleges seven counts: (1) race and sex discrimination; (2) hostile work environment; (3) retaliation; (4) intentional infliction of emotional distress; (5) negligent infliction of emotional distress; (6) race discrimination and retaliation under 42 U.S.C. § 1981; and (7) wrongful discharge in violation of Ariz. Rev. Stat. Ann. § 23-1501(3)(C)(ii). (Id. at ¶¶ 37-67).
To survive a 12(b)(6) motion for failure to state a claim, a complaint must meet the requirements of Federal Rule of Civil Procedure 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Although a complaint attacked for failure to state a claim does not need detailed factual allegations, the pleader's obligation to provide the grounds for relief 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 (internal citations omitted). The factual allegations of the complaint must be sufficient to raise a right to relief above a speculative level. Id. Rule 8(a)(2) "requires a `showing,' rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only `fair notice' of the nature of the claim, but also `grounds' on which the claim rests." Id. (citation omitted).
Rule 8's pleading standard demands more than "an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 555). To survive a motion to dismiss, a complaint must contain sufficient factual matter, which, if accepted as true, states a claim to relief that is "plausible on its face." Iqbal, 129 S.Ct. at 1949. Facial plausibility exists if the pleader pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. Plausibility does not equal "probability," but plausibility 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).
In deciding a motion to dismiss under Rule 12(b)(6), the Court must construe the facts alleged in the complaint in the light most favorable to the drafter of the complaint and the Court must accept all well-pleaded factual allegations as true. See Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). Nonetheless, the Court does not have to accept as true a legal conclusion couched as a factual allegation. Papasan v. Allain, 478 U.S. 265, 286 (1986).
Defendants' Motion to Dismiss contains four arguments: (1) PEC should be dismissed because it never employed Plaintiff, and Plaintiff failed to name PEC in Plaintiff's EEOC complaint; (2) Plaintiff's fourth,
At the outset of their motion, Defendants first argue that PEC should be dismissed because PEC never employed Plaintiff. (Doc. 20 at 3-4). Further, Defendants argue that even if PEC did employ Plaintiff, Plaintiff failed to exhaust her administrative remedies against PEC because she failed to name PEC as her employer in her formal EEOC complaint. (Id. at 4-5).
Defendants' administrative remedies argument lacks merit. Courts must construe EEOC complaints liberally. Sosa v. Hiraoka, 920 F.2d 1451, 1458 (9th Cir. 1990) ("`EEOC charges must be construed with the utmost liberality since they are made by those unschooled in the technicalities of formal pleading.'") (quoting Kaplan v. Int'l Alliance of Theatrical and Stage Emps. and Motion Picture Machine Operators, 525 F.2d 1354, 1359 (9th Cir. 1975)); see also Serpe v. Four-Phase Sys., Inc., 718 F.2d 935, 937 (9th Cir. 1983) (relying on liberal interpretation principles in holding that, even though the EEOC complaint did not allege that the plaintiff was refused a promotion because she is a woman, the complaint was enough to confer subject matter jurisdiction over that claim because an EEOC investigation would have revealed her claims). Even failure to name a defendant in the EEOC complaint is not fatal so long as the unnamed defendant was "`involved in the acts giving rise to the [EEOC] claims.'" Sosa, 920 F.2d at 1459 (quoting Wrighten v. Metro. Hosp., 726 F.2d 1346, 1352 (9th Cir. 1984)). Here, Plaintiff, now represented by counsel, alleges that all of her supervisors and managers are employees of PEC. Assuming that Plaintiff is correct, PEC, through its employees, was involved in the acts underlying Plaintiff's Title VII claims. Thus, PEC cannot be dismissed solely because it was not named in the EEOC complaint.
Defendants also argue that PEC should be dismissed because PEC was never Plaintiff's employer. Plaintiff argues that, under the economic realities test, PEC is a joint employer with PAPDC. Plaintiff further argues that, even if PEC is not a joint employer, it is liable as an indirect employer. Defendants respond that the economic realities test only applies when determining joint employer status under the Fair Labor Standards Act, and that the integrated enterprise test applies in the Title VII context.
Both Defendants and Plaintiff are correct to some degree. The Ninth Circuit Court of Appeals has held that when courts determine whether an entity has enough employees to count as an employer for the purposes of Title VII coverage, the appropriate test is the integrated enterprise test. Anderson v. Pac. Mar. Ass'n, 336 F.3d 924, 928 (9th Cir. 2003) ("The [integrated enterprise] test does not determine joint liability . . ., but instead determines whether a defendant can meet the statutory criteria of an `employer' for Title VII applicability.") (emphasis in original). But, when there is no dispute that at least one defendant qualifies as an employer under Title VII, the integrated enterprise test is wholly inapplicable. Id. at 929 ("[The defendant] does not dispute that it employs at least 15 employees. Because this places [the defendant] within Title VII's statutory coverage as an `employer,' the integrated enterprise test is inapplicable.") (internal footnote omitted). Here, Defendants argue that the integrated enterprise test is appropriate to determine whether PEC is an employer for liability purposes, not coverage under Title VII in the first place. (Doc. 22 at 5). Plaintiff has alleged that both PEC and PAPDC employ over fifteen people, and Defendants have not yet disputed that claim or presented evidence to the contrary.
Plaintiff argues that the economic realities test applies when determining whether two employers jointly employ one employee. Title VII includes a short definition of "employee"; the statute says that "[t]he term `employee' means any individual employed by an employer." 42 U.S.C. § 2000e(f) (2006). Defendants do not dispute that PAPDC is Plaintiff's employer. The issue is whether PEC is a joint employer with PAPDC.
Plaintiff is correct that the Ninth Circuit has used the economic realities test to determine whether a plaintiff is a direct employee under Title VII. King v. Corcoran State Prison, No. 1:10-cv-00878-LJO-SKO, 2011 WL 2295035, at *2 (E.D. Cal. June 9, 2011) (citing EEOC v. Pac. Mar. Ass'n, 351 F.3d 1270, 1275-77 (9th Cir. 2003)).
The Ninth Circuit has recently clarified and consolidated the various tests that have been used to determine employment status in Title VII cases. Id. The Murray court found three formulations of the test for employment status in the Ninth Circuit: "a `common law agency' test, an `economic realities' test, and a `common law hybrid' test." Id. Although the three tests have slight differences, the Murray court held that "there is no functional difference between the three formulations." Id. (citation omitted). The common law agency test was announced by the Supreme Court in Darden. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992). Thus, to the extent that there are any differences between the three tests, the Darden analysis controls.
The inquiry under Darden for whether a plaintiff is an employee is "the [defendant's] right to control the manner and means by which the [plaintiff's work] is accomplished." Darden, 503 U.S. at 323. Some factors relevant to this inquiry are:
Id. Plaintiff alleges that all of her supervisors and managers were employees of PEC. Defendant has not disputed that claim. Without the aid of discovery and assuming Plaintiff's allegations are true, PEC had complete control over the manner and means of Plaintiff's work. Indeed, according to the Complaint, it was PEC who hired Plaintiff, assigned Plaintiff her work projects, provided Plaintiff feedback regarding her work, dictated when and where Plaintiff would work, disciplined Plaintiff when necessary, committed the acts the Complaint alleges, and ultimately fired Plaintiff. Thus, Plaintiff's Complaint properly alleges that PEC is her employer for Title VII purposes.
Defendant argues that Plaintiff has not sufficiently pleaded her fourth, fifth, and seventh causes of action. (Doc. 20 at 5-12). Plaintiff concedes that her fifth cause of action—negligent infliction of emotional distress—is barred by Arizona's Worker's Compensation Statute. (Doc. 21 at 5). Thus, the Court need only determine the sufficiency of Plaintiff's fourth and seventh causes of action.
Plaintiff's fourth cause of action is for intentional infliction of emotional distress ("IIED"). In order to state a claim for IIED, Plaintiff must sufficiently allege: (1) "conduct by the defendant [that is] `extreme' and `outrageous'"; (2) that "the defendant . . . intend[ed] to cause emotional distress or recklessly disregard[ed] the near certainty that such distress [would] result from his conduct"; and (3) that "severe emotional distress . . . occur[red] as a result of defendant's conduct." Ford v. Revlon, Inc., 734 P.2d 580, 585 (Ariz. 1987). Defendants argue that the conduct Plaintiff alleges, even if true, is not sufficiently extreme or outrageous enough to satisfy the first element of an IIED claim. (Doc. 20 at 5-7).
In order to satisfy the extreme and outrageous prong, Plaintiff must allege conduct that is "so outrageous in character and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society." Mintz v. Bell Atl. Sys. Leasing Int'l, Inc., 905 P.2d 559, 563 (Ariz. 1995) (citations omitted) (internal quotation marks omitted). It is "extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress." Id. (citation omitted) (internal quotation marks omitted). In Bell Atlantic, the plaintiff, Mintz, alleged that she was repeatedly passed over for promotions based on her sex. Id. at 561. As a result of the discrimination, Mintz was hospitalized for "severe emotional and psychological problems." Id. Initially, Mintz's employer paid her short term disability benefits. Id. Despite knowing that Mintz's doctor had recommended she not return to work until October 1, Mintz's employer stopped paying her short term disability and ordered her to work on September 11. Id. Mintz returned to work as ordered, and was back in the hospital the next day as a result of the stress. Id. The Arizona Supreme Court found that Mintz had failed to sufficiently plead outrageous and extreme conduct to state an IIED claim. Id. at 564 ("Although we can certainly see the apparent callousness and insensitivity of delivering a job-reassignment letter to an employee in Mintz's condition, we conclude that the trial court did not err in ruling that the facts alleged by Mintz were not sufficiently extreme and outrageous to state a claim against her employer for intentional infliction of emotional distress.").
Plaintiff's response to Defendants' Motion to Dismiss defends her IIED claim in only one sentence. (Doc. 21 at 5) (citing Ford, 734 P.2d at 585). Plaintiff's reliance on Ford is misplaced. In Ford, Letta Ford's supervisor, Braun, engaged in a campaign of sexual harassment that included numerous explicit, expletive-filled demands for sexual contact. Ford, 734 P.2d at 581-83. After Ford spurned his repeated advances, Braun on one occasion grabbed her in a choke hold with one hand and sexually assaulted Ford with his other hand. Id. at 582. Ford complained of this conduct to more than eight different people within her employer's (Revlon) organization, none of whom took any action for over a year, even after determining that Ford was telling the truth. Id. at 582-83. Ford ended up attempting suicide as a result of the onslaught of harassment, and she eventually sued her employer for IIED. Id. at 583. The Arizona Supreme Court upheld the jury's verdict finding Revlon liable for IIED, stating that it was outrageous for Revlon to ignore Braun's extreme and outrageous conduct. Id. at 585-86.
Here, Defendants are correct that Plaintiff has failed to sufficiently plead extreme and outrageous conduct in order to establish an IIED claim. The conduct Plaintiff alleges is nowhere near the conduct found outrageous and extreme in Ford. Moreover, the alleged conduct does not even rise to the same level of outrageousness as the employer's conduct in Mintz. The most extreme conduct Plaintiff alleges is that Wang forced himself into her office in order to hear her conversation with Macaluso, and then left once he realized she wanted to speak in private. (Doc. 12 at ¶ 26). Plaintiff also alleges that Wang yelled at her and called her a liar on multiple occasions. While incredibly rude, this conduct is not so extreme as to go beyond all bounds of decency. Thus, Plaintiff has failed to sufficiently state an IIED claim.
Plaintiff's seventh cause of action is for wrongful discharge in violation of Arizona's Employment Protection Act ("AEPA"), which states that:
Ariz. Rev. Stat. Ann. § 23-1501(3)(C)(ii) (2012) (West). By the plain terms of the AEPA, a plaintiff must point to a predicate Arizona constitutional provision or statute that the employer "is violating or will violate." Id. In order to fulfill that requirement, Plaintiff alleges that she was terminated in retaliation for reporting conduct that constitutes criminal assault under Ariz. Rev. Stat. Ann. § 13-1203 and harassment under Ariz. Rev. Stat. Ann. § 13-2921. (Doc. 12 at ¶ 64). Defendants respond that the conduct alleged in the complaint does not show a violation of either predicate statute Plaintiff cites.
An actual violation of the predicate statute need not occur. Logan v. Forever Living Prod. Int'l, Inc., 52 P.3d 760, 763 (Ariz. 2002) (citing Wagonseller v. Scottsdale Mem'l Hosp., 710 P.2d 1025, 1035 (Ariz. 1985)). Rather, the AEPA allows wrongful termination claims when an employee has a reasonable belief that the employer "has violated, is violating, or will violate the Constitution of Arizona or the statutes of this state." Ariz. Rev. Stat. Ann. § 23-1501.
Plaintiff alleges that she was terminated in retaliation for reporting conduct that is forbidden by Arizona's criminal assault and harassment statutes. (Doc. 12 at ¶¶ 63-67). Criminal assault in Arizona is defined as: (1) "[i]ntentionally, knowingly or recklessly causing any physical injury to another person;" (2) "[i]ntentionally placing another person in reasonable apprehension of imminent physical injury;" or (3) "[k]nowingly touching another person with the intent to injure, insult or provoke such person." Ariz. Rev. Stat. Ann. § 13-1203(A) (2012) (West). Plaintiff has alleged conduct that, if true, satisfies subsection three. Plaintiff alleges that immediately following a heated discussion with Wang, Wang forced his way into her office by "pushing [her] hand off the door." (Doc. 12 at ¶ 26). Given these facts, Plaintiff has alleged that Wang knowingly touched her with an intent to either insult or provoke. See King v. Cross, No. 10-cv-879-DRH, 2011 WL 5877447, at *6 (S.D. Ill. Nov. 23, 2011) ("Any degree of touching could violate Arizona[`s] simple assault statute as it encompass[es] `knowingly touching another person with the intent to . . . insult or provoke such person.'") (quoting Ariz. Rev. Stat. Ann. § 13-1203(A)(3)). Defendants are correct that Wang's behavior may not rise to the level of intentionally causing injury or placing Plaintiff in reasonable apprehension of imminent injury under subsections one and two. However, it is reasonable to infer from the facts in Plaintiff's Complaint that Wang acted with an intent to provoke or insult. At this early stage, the Court cannot find that Plaintiff has failed to state an AEPA claim under Rule 12(b)(6) standards.
Defendants argue that Plaintiff's Complaint should be dismissed because she did not join an indispensable party—her spouse. Defendants rely on Federal Rule of Civil Procedure 19 and argue that, should they prevail, they will not be accorded complete relief because Plaintiff's community property will be shielded from any recovery Defendants are awarded. (Doc. 20 at 12-13). Plaintiff responds by citing an Arizona case which states that a plaintiff's spouse is a "proper, though not a necessary or indispensable, party." (Doc. 21 at 7) (citing Dombey v. Phx. Newspapers, Inc., 708 P.2d 742, 747 (Ariz. Ct. App. 1985), vacated on other grounds, 724 P.2d 562 (Ariz. 1986)).
The Federal Rules of Civil Procedure state that: "A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if . . . in that person's absence, the court cannot accord complete relief among existing parties." Fed. R. Civ. P. 19(a). The court in Weimer discussed whether a plaintiff's spouse is an indispensable party under Rule 19(a). Weimer v. Maricopa Cnty. Cmty. Coll. Dist., 184 F.R.D. 309, 310 (D. Ariz. 1998). There, Ricky Weimer, an Arizona resident, sued his employer for wrongful termination and violations of his constitutional rights under 42 U.S.C. § 1983. Id. at 309. Weimer was married but did not initially join his spouse as a plaintiff. Id. The court found Weimer's spouse to be an indispensable party under Rule 19(a) because state and federal law provided, in certain instances, that a prevailing defendant is entitled to attorneys' fees and costs. Id. at 310. The court reasoned that "[f]or a party to hold the marital community accountable for any obligation, it must sue both spouses jointly. In this case, Mrs. Weimer must be joined as a plaintiff for the marital community to be bound under a [potential] judgment awarding attorneys' fees to [the defendant]." Id. (internal citation omitted).
Here, as in the § 1983 action in Weimer, Defendants could potentially be awarded costs and attorneys' fees. See 42 U.S.C. § 2000e-5(k). Thus, Plaintiff's spouse is an indispensable party and must be joined.
Plaintiff's reliance on Dombey is misplaced. The court in Weimer considered Dombey in reaching its decision and found Dombey to be inapplicable to whether a plaintiff's spouse is an indispensable party. As the Weimer court noted, the issue in Dombey was whether a plaintiff's spouse was a proper party, not an indispensable party. Weimer, 184 F.R.D. at 310 n.2. The Dombey court "gave no reasoning as to why it found the spouse not to be a necessary party." Id. Furthermore, the Weimer court distinguished Dombey on the grounds that in Weimer, there was a "potential award of attorneys' fees in [the defendant's] favor." Id. Here too, there is a potential award for attorneys' fees is Defendants favor, and the Court agrees with the Weimer court that this fact distinguishes the instant case from Dombey.
Although the Court finds that Plaintiff's spouse is an indispensable party, the Court need not dismiss the case. As Defendants have requested in the alternative, the Court will order Plaintiff to file a third amended complaint that joins Plaintiff's spouse as a party and is otherwise consistent with this Order.
Defendants' final argument is that the Complaint should be stricken under Federal Rule of Civil Procedure 12(f) because it does not comply with Rule 8(a). Defendants point to several paragraphs in Plaintiff's Complaint that span multiple pages. Plaintiff responds that if she were ordered to "abbreviate the allegations, this court would most likely be faced with another motion to dismiss based upon Bell Atlantic Corp. v. Twombley, 550 U.S. 544 (2007)." (Doc. 21 at 8).
Rule 8(a) requires that pleadings contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule 12(f) allows courts to "strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). "`The function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial.'" Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010). A party moving to strike a pleading under Rule 12(f) must point to those portions of the complaint that are either redundant, immaterial, impertinent, or scandalous. Id. at 973-74.
Defendants rely on Hatch in arguing that the Complaint should be stricken. (Doc. 20 at 14) (citing Hatch v. Reliance Ins. Co., 758 F.2d 409, 415 (9th Cir. 1985)). In Hatch, the Ninth Circuit affirmed a district court's dismissal of a complaint that exceeded 70 pages and was "confusing and conclusory." Hatch, 758 F.2d at 415. Here, Plaintiff's Complaint, while not a model of conciseness, is less than half the length of the complaint stricken in Hatch. Further, Plaintiff's complaint is not confusing and is largely factual, not conclusory. The Complaint is sufficient to inform Defendants of the factual allegations underlying Plaintiff's claims, and informs Defendants of the specific legal claims levied against them. Defendants have not demonstrated which portions of the Complaint must be stricken because they are redundant, immaterial, impertinent, or scandalous. Thus, the Court will not strike the complaint under Rule 12(f).
Accordingly,
