Suico v. Freeport-McMoRan Corporation, et al, No. 2:2011cv02269 - Document 37 (D. Ariz. 2012)

Court Description: ORDER granting in part and denying in part 8 Motion to Dismiss for Failure to State a Claim. Signed by Judge David G Campbell on 2/8/2012.(NVO)
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Suico v. Freeport-McMoRan Corporation, et al 1 Doc. 37 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Laura Suico, an individual, Plaintiff, 10 11 12 13 14 No. CV11-2269-PHX-DGC ORDER v. Freeport-McMoran Copper & Gold Inc., a Delaware corporation; Harris Enterprises, L.L.C., d/b/a Hospitality Staffing Solutions, an Arizona limited liability corporation; Robert Winslow and Jane Doe Winslow, husband and wife; ABC Corporations I-X, 15 Defendants. 16 17 Plaintiff Laura Suico brought suit against Freeport-McMoran Copper & Gold Inc. 18 (“Freeport”), Robert Winslow (“Winslow”), and Harris Enterprises (“Harris”). Harris 19 moves to dismiss all counts alleged in the complaint (Doc. 1-1) pursuant to Federal Rule 20 of Civil Procedure 12(b)(6). The motion is fully briefed. Docs. 8, 16, 18. The Court will 21 grant in part and deny in part Harris’s motion to dismiss.1 22 I. Background. 23 Plaintiff alleged the following facts in her complaint, which are assumed true for 24 purposes of this motion. In October 2009, Plaintiff was hired by Harris, an employment 25 agency. Doc. 1-1 at 3. As part of her employment with Harris, she worked for Freeport 26 27 28 1 Plaintiff’s request for oral argument is denied because the parties have fully briefed the issues and oral argument will not aid the Court’s decision. Fed. R. Civ. P. 78(b). 1 as Winslow’s assistant. Id. Winslow was an executive chef and manager of dining 2 services for Freeport and had the ability to hire, fire, promote, demote, and discipline 3 Plaintiff. Id. ¶ 15. Throughout Plaintiff’s employment with Freeport, Winslow subjected 4 Plaintiff to: (1) vulgar and sexually suggestive notes and messages; (2) crude, lewd, and 5 sexually suggestive remarks; (3) demands for sexual favors in exchange for pay and other 6 benefits; (4) threats of physical harm and adverse employment-related consequences; 7 (5) groping, fondling, and sexual intercourse; and (6) repeated comments that were 8 sexually suggestive and offensive. Doc. 1-1 at 3. Plaintiff reported Winslow’s conduct 9 to her supervisor at Harris, Scott Maples, and was told to “man up” and “take your licks.” 10 Doc. 1-1 at 4. Plaintiff felt trapped in an abusive and hostile work environment. Id. In 11 June 2009, Plaintiff was constructively discharged from her employment. Id. 12 On October 7, 2010, Plaintiff’s attorney filed a charge of discrimination against 13 Freeport with the Equal Employment Opportunity Commission (“EEOC”). Doc. 1-1 at 5. 14 On June 24, 2011, the EEOC issued a Notice of Right to Sue with respect to her charge of 15 discrimination. Id. On November 17, 2011, Plaintiff brought suit against Freeport, 16 Winslow, and Harris alleging: (1) sexual harassment and abuse; (2) hostile work 17 environment; (3) intentional infliction of emotional distress; (4) battery; and (5) negligent 18 retention/supervision. 19 II. Standard. 20 When analyzing a complaint for failure to state a claim under Rule 12(b)(6), the 21 well-pled factual allegations “‘are taken as true and construed in the light most favorable 22 to the nonmoving party.’” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009) 23 (citation omitted). Legal conclusions couched as factual allegations “are not entitled to 24 the assumption of truth,” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009), and therefore 25 “‘are insufficient to defeat a motion to dismiss for failure to state a claim,’” In re Cutera 26 Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010) (citation omitted). 27 Rule 12(b)(6) dismissal, the complaint must plead “enough facts to state a claim to relief 28 -2- To avoid a 1 that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This 2 plausibility standard “is not akin to a ‘probability requirement,’ but it asks for more than 3 a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S. Ct. at 1949 4 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the 5 court to infer more than the mere possibility of misconduct, the complaint has alleged – 6 but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Id. at 1950 (quoting Fed. 7 R. Civ. P. 8(a)(2)). 8 III. 9 Analysis. A. Counts 1 and 2: Title VII Claims Against Harris. 10 Harris argues that Plaintiff failed to exhaust her Title VII administrative remedies 11 by failing to name Harris in the charge she filed with the EEOC. In deciding a motion to 12 dismiss for failure to exhaust nonjudcial remedies, a court may look beyond the pleadings 13 to resolve disputed issues of fact. Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 14 2003). A court may also consider documents of which it takes judicial notice, including 15 those that are matters of public record such as charges filed with the EEOC. Gallo v. 16 Board of Regents of Univ. of Cal., 916 F. Supp. 1005, 1007 (S.D. Cal. 1995). Thus, the 17 Court will consider the EEOC charge and the documents and exhibits attached to 18 Plaintiff’s response for the purposes of deciding this motion. 19 To pursue discrimination claims under Title VII, a plaintiff must first file a timely 20 charge with the EEOC. 42 U.S.C. § 2000e-5(e); Santa Maria v. Pacific Bell, 202 F.3d 21 1170, 1176 (9th Cir. 2000). Filing such a charge prior to initiating a lawsuit is central to 22 Title VII’s statutory scheme because it provides the EEOC with an opportunity to 23 investigate discriminatory practices and enables it to perform its roles of obtaining 24 voluntary compliance and promoting conciliation. 25 Union, 491 U.S. 164, 180–81 (1989); Williams v. Little Rock Mun. Water Works, 21 F.3d 26 218, 222 (8th Cir. 1994); B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099 (9th Cir. 27 2002). Thus, as a general rule, claimants purporting to state causes of action under 28 -3- See Patterson v. McLean Credit 1 Title VII must sue only those named in the EEOC charge. 42 U.S.C. § 2000e-5(f)(1); see 2 also Sosa v. Hiraoka, 920 F.2d 1451, 1458 (9th Cir. 1990). 3 4 The Ninth Circuit has identified three exceptions that may apply when a lawsuit is brought against a party not named in the EEOC charge: 5 6 7 8 9 10 11 First, if the respondent named in the EEOC charge is a principal or agent of the unnamed party, or if they are “substantially identical parties,” suit may proceed against the unnamed party. Second, suit may proceed if the EEOC could have inferred that the unnamed party violated Title VII. Third, if the unnamed party had notice of the EEOC conciliation efforts and participated in the EEOC proceedings, then suit may proceed against the unnamed party. Sosa, 920 F.2d at 1459. 12 The Court concludes that each of these exceptions is satisfied. First, Winslow 13 appears to have acted as an agent for Harris. Plaintiff was Harris’s employee, but 14 Winslow had authority to promote, fire, and increase the pay of Plaintiff. Doc. 1-1 at 3. 15 Winslow thus appears to have been authorized to act on behalf of Harris when it came to 16 critical employment decisions concerning Plaintiff. Second, the EEOC was on notice of 17 Harris’s involvement through letters and other communications from counsel (Doc. 16- 18 1), and thus had reason to investigate Harris’s involvement and could have inferred that 19 Harris violated Title VII. Third, Harris apparently was well aware of the EEOC charge 20 because it hired the same counsel as Freeport and participated in the investigation. 21 The Court will deny Harris’s motion to dismiss claims 1-2. 22 B. 23 A plaintiff alleging intentional infliction of emotional distress (“IIED”) in Arizona 24 must demonstrate three elements: (1) the defendant’s conduct was extreme and 25 outrageous; (2) the defendant intended to cause emotional distress or “recklessly 26 disregarded the near certainty” that his conduct would produce such distress; and (3) the 27 defendant’s conduct actually caused severe emotional distress. Bodett v. Coxcom, Inc., Count III: Intentional Infliction of Emotional Distress. 28 -4- 1 366 F.3d 736, 746 (9th Cir. 2004); Ford v. Revlon, 734 P.2d 580, 585 (1987). “It is for 2 the court to determine, in the first instance, whether the defendant's conduct may 3 reasonably be regarded as so extreme and outrageous as to permit recovery.” Watts v. 4 Golden Age Nursing Home, 619 P.2d 1032, 1035 (1980) (quoting Restatement (Second) 5 of Torts, § 46 cmt. h (1977)). This element is met when a defendant's conduct is “so 6 outrageous in character and so extreme in degree, as to go beyond all possible bounds of 7 decency, and to be regarded as atrocious and utterly intolerable in a civilized 8 community.” Mintz v. Bell Atl. Sys. Leasing Int'l, Inc., 905 P.2d 559, 563 (Ariz. App. 9 1995) (citations omitted). Dismissal of an IIED claim prior to summary judgment is 10 proper only if the “plaintiff is not entitled to relief under any facts susceptible of proof 11 under the claims stated.” Id. 12 Plaintiff’s complaint includes the following allegations with regard to IIED. 13 Defendant Winslow was sexually harassing and abusing Plaintiff and creating a hostile 14 work environment. Doc. 1-1 at 9. Plaintiff told Scott Maples of the abuse and of the 15 hostile environment and asked for help. Doc. 1-1 at 4. Maples told Plaintiff to “man up” 16 and “take your licks.” 17 tolerated Winslow’s persistent and pervasive misconduct, they acted in an extreme and 18 outrageous manner. Doc. 1-1 at 9. Id. Plaintiff alleges that because both Harris and Freeport 19 The Court cannot conclude that the “plaintiff is not entitled to relief under any 20 facts susceptible of proof under the claims stated.” Mintz, 905 P.2d at 563 (emphasis 21 added). Knowing and callous disregard of severe sexual abuse, if shown by the evidence 22 against Harris, may satisfy the standard for IIED in Arizona. Such a determination is 23 better made at the summary judgment stage or at trial when the facts have been explored 24 through discovery and included more fully in the briefing to the Court. 25 C. Count IV: Battery. 26 Plaintiff alleges that Winslow touched, fondled, and groped Plaintiff in a harmful 27 and offensive way. Doc. 1-1 at 10. Plaintiff also alleges that both Harris and Freeport 28 -5- 1 knew or should have known about the abuse and should have stopped the abuse. Id. 2 Plaintiff asserts that because of their conduct both Freeport and Harris are independently 3 and vicariously liable for the damages Plaintiff sustained. Id. Harris states that it cannot 4 be vicariously liable for the actions of Winslow because Winslow was not an employee 5 or agent of Harris and Harris did not have control over Winslow’s duties. Doc. 8 at 9-10. 6 As already noted, Winslow could be viewed as Harris’s agent because he had the 7 authority to hire, fire, and determine the pay of Plaintiff, who was Harris’s employee. 8 Thus, it is inappropriate to dismiss this claim at the pleading stage. 9 10 11 12 13 14 D. Count V: Negligent Retention/Supervision. Harris moves to dismiss Count V of the Complaint. Plaintiff agrees. Doc. 16 at 11. Accordingly, the Court will dismiss Count V with respect to Harris. IT IS ORDERED that Harris’s motion to dismiss (Doc. 8) is granted in part and denied in part as set forth above. Dated this 8th day of February, 2012. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-