Gray v. GC Service ( 2022 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Michele Gray, No. CV-21-01334-PHX-DGC 10 Plaintiff, ORDER 11 v. 12 GC Service, 13 Defendant. 14 15 16 Defendant GC Services, LP (“GCS”) has filed a motion to dismiss pro se Plaintiff 17 Michele Gray’s complaint or to compel arbitration. Doc. 12. On October 13, 2021, the 18 Court ordered Plaintiff to respond to the motion by October 29 (Doc. 16), but she failed to 19 do so. Although Plaintiff did not respond, Defendant filed a reply brief responding to 20 arguments Plaintiff made in her pending motion which could be construed as responsive to 21 the motion to compel arbitration. Doc. 21. Defendant’s request for oral argument is denied 22 because oral argument will not aid the Court’s decision. LRCiv 7.2(f). 23 Also pending are before the Court are Plaintiff’s motions for alternative dispute 24 resolution (“ADR”) and for appointment of counsel. Docs. 14, 18, 22. Defendant 25 responded to her first motion for ADR (Doc. 15), but Plaintiff filed no reply brief. Her 26 second motion for ADR is fully briefed. Docs. 18, 19, 20. The Court will grant 27 Defendant’s motion to dismiss because Plaintiff’s claims are barred by res judicata. All 28 other pending motions will be denied as moot. 1 I. Background. 2 Plaintiff’s complaint asserts various federal and state claims arising out of her 3 former employment with Defendant.1 Plaintiff was hired by Defendant in Nevada as a 4 home-based customer service representative in June 2019. Docs. 1 at 2, 12 at 2. Plaintiff 5 alleges she was subject to harassment and discrimination that amounted to constructive 6 termination, tortious interference, and breach of contract. Plaintiff was 53 at the time of 7 her employment with Defendant and alleges that she was not given the same opportunities 8 as younger co-workers. Doc. 1 at 6, 20. She alleges that she was excluded from team 9 meetings, coaching, and training – which she characterizes as “mandatory” aspects of her 10 job – and was not given technology support. Id. at 6-8. She alleges that her supervisor 11 questioned how she got the job, management constantly “annoyed” her, and she was not 12 allowed to dispute warnings she received for returning late from breaks or missing calls. 13 Id. at 8, 16. Feeling that termination was impending, Plaintiff sent Defendant a letter of 14 resignation on January 25, 2020, to be effective on February 3, 2020, but Defendant 15 accepted it effective immediately. Id. at 2. About the time Plaintiff submitted her letter, 16 Defendant alleges that it learned she had moved to New York and accepted her resignation 17 with immediate effect because it does not employ individuals residing in New York. 18 Doc. 12 at 2. 19 Plaintiff asserts claims under the Federal Tort Claims Act (“FTCA”), the Year 2000 20 Computer Date Change Act (“Y2K Act”), the Age Discrimination in Employment Act of 21 1967 (“ADEA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans 22 with Disabilities Act (“ADA”), and the Social Security Act (“SSA”). She also asserts state 23 law claims for intentional infliction of emotional distress, tortious interference, breach of 24 contract, and discrimination under the Arizona Civil Rights Act (“ACRA”), the New York 25 Human Rights Act (“NYHRA”), and the Nevada Fair Employment Practices Act 26 1 Although the caption of Plaintiff’s complaint lists both Apple and GCS as 27 defendants, Plaintiff is suing only GCS. Doc. 12-1 at 38 n.2. That is the only Defendant listed in her civil cover sheet and the only Defendant she has served. See Docs. 1-2, 3, 10. 28 Plaintiff was employed by GCS, which provided call center management services to Apple. Doc. 12-1 at 38 n.2. 1 (“NFEPA”). Plaintiff also cites Article 18, section 6 of the Arizona Constitution (“the 2 Anti-Abrogation Clause”). 3 This is the fourth suit Plaintiff has filed against Defendant. She first filed suit in the 4 Northern District of New York (“the NY Federal Suit”). She asserted claims under the 5 FTCA, Y2K Act, and Title VII. Doc. 12-1 at 20-22. On July 9, 2020, a Magistrate Judge 6 recommended dismissal of Plaintiff’s complaint for lack of subject matter jurisdiction and 7 leave to file an amended complaint asserting claims only under Title VII. Id. at 52. 8 Plaintiff’s amended complaint contained claims under the FTCA, Title VII, ADEA, and 9 for intentional infliction of emotional distress, tortious interference, and breach of contract. 10 Id. at 95-105. On February 1, 2021, the court dismissed Plaintiff’s complaint for failure to 11 state a claim. Id. at 113-14. The court allowed Plaintiff 60 days to replead her ADEA 12 claim and dismissed all other claims with prejudice. Id. Plaintiff did not replead her ADEA 13 claim and it too was dismissed on May 4, 2021. Id. at 116. 14 Plaintiff filed a second suit in New York state court (“the NY State Suit”) and a 15 third in Arizona state court (“the AZ State Suit”), each asserting claims under the FTCA, 16 Title VII, ADEA, Y2K Act, and for tortious interference, as well as claims under ACRA, 17 NYHRL, and NFEPA. Doc. 12-1 at 128-36, 150-60. The AZ State Suit also cited the 18 Anti-Abrogation Clause of the Arizona Constitution. Doc. 12-1 at 159-60. The AZ State 19 Suit was dismissed with prejudice on August 4, 2021, for failure to state a claim and 20 because the claims were barred by res judicata. Doc. 12-1 at 170. The NY State Suit was 21 dismissed on August 18, 2021, on res judicata grounds because the claims had either been 22 dismissed in the NY Federal Suit or arose from the same series of transactions and thus 23 should have been asserted in the NY Federal Suit. Id. at 179. Plaintiff filed this suit on 24 August 2, 2021. Doc. 1. 25 II. Plaintiff’s Claims Are Barred By Res Judicata. 26 Defendant argues that Plaintiff’s complaint is barred by res judicata because it 27 complains of the same work conditions as her three previous suits. Doc. 12 at 10. 28 Defendant notes that Plaintiff’s claims under the FTCA, Title VII, ADEA, and for 1 intentional infliction of emotional distress, tortious interference, and breach of contract 2 were dismissed with prejudice in the NY Federal Suit. Id. Defendant also argues that these 3 claims, as well as Plaintiff’s claims under the Y2K Act, ACRA, NYHRL, NFEPA, and the 4 Anti-Abrogation Clause were dismissed in the AZ and NY State Suits. Id. While 5 Plaintiff’s SSA and ADA claims are new, Defendant argues that they are barred by res 6 judicata because they arise from the same events as the other suits and could have been 7 litigated in those suits. Id. 8 Defendant filed its motion on September 16, 2021. On October 13, 2021, the Court 9 advised Plaintiff that “she must file a written response to Defendant’s motions to compel 10 arbitration and dismiss” by October 29, 2021, and warned her that “the Court may 11 summarily grant the motions if Plaintiff fails” to do so. Doc. 16 at 3 (citing LRCiv 7.2(i)). 12 Plaintiff filed no response to Defendant’s motion. Plaintiff did file two motions seeking 13 ADR other than arbitration (Docs. 14, 18), but neither addresses Defendant’s res judicata 14 argument. 15 “Res judicata bars relitigation of all grounds of recovery that were asserted, or could 16 have been asserted, in a previous action between the parties, where the previous action was 17 resolved on the merits.” United States ex rel. Barajas v. Northrup Corp., 147 F.3d 905, 18 909 (9th Cir. 1998). Res judicata applies “whenever there is (1) an identity of claims, (2) a 19 final judgment on the merits, and (3) privity between parties.” Tahoe-Sierra Pres. Council, 20 Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003) (citations 21 omitted). Dismissal for failure to state a claim is a dismissal on the merits for res judicata 22 purposes. Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002). Identity of claims 23 exists when two suits “arise from the same transactional nucleus of facts.” Owens v. Kaiser 24 Found. Health Plan, Inc., 244 F.3d 708, 714 (9th Cir. 2001) (internal quotation marks and 25 citation omitted). 26 Privity exists between Plaintiff and Defendant because they were parties in the NY 27 Federal, NY State, and AZ State Suits. Final judgments on the merits were entered in each 28 of these cases. An identity of claims exists because Plaintiff’s claims under the FTCA, 1 Y2K Act, ADEA, Title VII, ACRA, NYHRA, NFEPA, the Anti-Abrogation Clause, and 2 for intentional infliction of emotional distress, tortious interference, and breach of contract 3 were dismissed in the NY Federal Suit and in the AZ State Suit. While Plaintiff has not 4 previously brought claims under the ADA and SSA, they arise from the same transactional 5 nucleus of facts. Owens, 244 F.3d at 714 (holding res judicata applied to bar previously 6 unlitigated claims where they were “related to the same set of facts as the allegations in 7 plaintiffs’ [prior] complaint for wrongful discharge”) (internal quotations omitted); 8 Feminist Women’s Health Ctr. v. Codispoti, 63 F.3d 863, 868 (9th Cir. 1995) (applying res 9 judicata to bar previously unlitigated claims where plaintiff “had to produce substantially 10 the same evidence in both suits to sustain its case”). Res judicata bars all Plaintiff’s claims. 11 III. All Other Pending Motions Are Denied as Moot. 12 Because Plaintiff’s complaint is barred by res judicata, Defendant’s motion to 13 compel arbitration and Plaintiff’s motions for ADR will be denied as moot. Plaintiff’s 14 motion for appointment of counsel to assist her in ADR, and her reference to summary 15 judgment, will also be denied as moot. The Court need not reach the issue of whether 16 Plaintiff’s complaint states a claim for relief. 17 IT IS ORDERED: 18 1. Defendant’s motion to dismiss (Doc. 12) is granted. The case is dismissed 19 with prejudice. 20 2. Defendant’s motion to compel arbitration (Doc. 12) is denied as moot. 21 3. Plaintiff’s motion for ADR (Doc. 14) is denied as moot. 22 4. Plaintiff’s second motion for ADR (Doc. 18) is denied as moot. 23 5. Plaintiff’s motion to obtain counsel and/or appoint counsel (Doc. 22) is 24 denied as moot. 25 6. Plaintiff’s motion for partial summary judgment pursuant to Rule 56 (Doc. 26 22) is denied as moot. 27 / / / 28 / / / 1 7. The Clerk shall terminate this action. 2 Dated this 12th day of January, 2022. 3 □ 4 pun 6 Cater phth 5 DavidG. Campbell 6 Senior United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-