Bailey v. Phoenix, City of ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Janie Sue Bailey, No. CV-22-01228-PHX-MTL 10 Plaintiff, ORDER 11 v. 12 City of Phoenix, et al., 13 Defendants. 14 15 Janie Sue Bailey sues her former employer, the City of Phoenix (the “City”), and 16 Lori Bays, alleging intentional infliction of emotional distress and First Amendment free 17 speech retaliation. The Court granted a Motion to Dismiss with leave to amend the 18 Complaint. (Doc. 11.) Defendants move to dismiss the Second Amended Complaint with 19 prejudice. (Doc. 14.) The Motion is fully briefed, and it will be granted.1 20 I. 21 The following well-pleaded facts come from the Second Amended Complaint and 22 are taken as true.2 Ms. Bailey began her employment with the City in February 2000. (Doc. 23 13 ¶ 9.) After 15 years of service, she became a senior human resources analyst in the City 24 of Phoenix Aviation Department. (Id. ¶ 10.) Sometime in 2019, Ms. Bailey was assigned 25 to investigate a report of sexual activity between two City employees in the airport 26 terminal. (Id. ¶ 16.) Ms. Bailey interviewed M.C., who was one of the two employees 27 1 The Court finds that oral argument will not aid in the decisional process and therefore Defendants’ request for oral argument is denied. 28 2 The Court is compelled to say that the Second Amended Complaint, particularly the factual allegations, is quite a mess. 1 subject to the report. (Id. ¶ 16.) M.C. filed a union grievance against Ms. Bailey alleging 2 that she was not offered union representation when questioned. (Id. ¶ 17.) Senior human 3 resources officials asked Ms. Bailey to stand down and the investigation was completed by 4 other personnel. (Id. ¶ 19.) The allegations were substantiated, and the two employees were 5 each suspended for five days. (Id ¶ 19.) Unbeknownst to Ms. Bailey, M.C. recorded their 6 conversation and submitted a copy of the recording and a transcript with her grievance 7 paperwork. (Id. ¶¶ 21, 23.) Ms. Bailey was reprimanded following an investigation 8 conducted by Ms. Bays and other City personnel. (Id. ¶¶ 17-24.) She alleges that her 9 reprimand was disproportionate to other employees in similar situations. (Id. ¶ 25.) 10 Later, Ms. Bailey was demoted in grade and job duties and reassigned to work at 11 the City’s downtown Phoenix human resources department. (Id. ¶ 69.) Ms. Bailey alleges 12 that her demotion resulted from her blowing “the whistle on the City’s conduct” in a 13 separate litigation matter. (Id. ¶ 68.) Ms. Bailey disagreed with the strategy taken by the 14 City Attorneys’ Office, including her role as a deposition witness. (E.g., id. ¶¶ 32, 40, 46, 15 48, 53.) Ms. Bailey alleges that the retaliation against her “forc[ed] her to resign.” (Id. 16 ¶ 68.) 17 II. 18 A complaint must assert sufficient factual allegations that, when taken as true, “state 19 a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 20 At the pleading stage, the Court’s duty is to accept all well-pleaded complaint allegations 21 as true. Id. “[D]ismissal . . . is proper if there is a lack of a cognizable legal theory or the 22 absence of sufficient facts alleged under a cognizable legal theory.” Conservation Force v. 23 Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011). 24 III. 25 A. Intentional Infliction of Emotional Distress 26 Count 1 of the Amended Complaint alleges a state-law claim against the City for 27 intentional infliction of emotional distress. According to the Arizona Supreme Court: 28 The tort of intentional infliction of emotional distress requires 1 proof of three elements: “[F]irst, the conduct by the defendant must be “extreme” and “outrageous”; second, the defendant 2 must either intend to cause emotional distress or recklessly 3 disregard the near certainty that such distress will result from his conduct; and third, severe emotional distress must indeed 4 occur as a result of defendant's conduct.” 5 6 Citizen Publ’g Co. v. Miller, 210 Ariz. 513, 516 (2005) (quoting Ford v. Revlon, Inc., 153 7 Ariz. 38, 43 (1987)). 8 Ms. Bailey’s Second Amended Complaint contains several averments that she 9 classifies as extreme and outrageous conduct. Included are allegations that she was the 10 subject of disproportionate discipline and retaliation, City personnel failed to enforce 11 certain policies and practices with respect to her employment, managers reduced her job 12 duties, and that she felt pressured by City attorneys during deposition preparation. 13 “It is for the court to determine, in the first instance, whether the defendant’s conduct 14 may reasonably be regarded as so extreme and outrageous as to permit recovery . . . .” 15 Anthony v. United States, — F. Supp. 3d —, 2022 WL 4781938, at *15 (D. Ariz. 2022) 16 (quoting Watts v. Golden Age Nursing Home, 127 Ariz. 255, 619 P.2d 1032, 135 (1980)). 17 To satisfy the extreme and outrageous threshold, “[a] plaintiff must show ‘the defendant’s 18 conduct was so outrageous in character and so extreme in degree, as to go beyond all 19 possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a 20 civilized community.’” Oakry v. City of Tempe, — F. Supp. 3d —, 2022 WL 4367606, at 21 *8 (D. Ariz. Sept. 21, 2022) (quoting Johnson v. McDonald, 197 Ariz. 155, 160 (App. 22 1999)). “The conduct must fall ‘[a]t the very extreme edge of the spectrum of possible 23 conduct.’” Id. (quoting Watts, 127 Ariz. at 258). 24 The Court finds that the Second Amended Complaint falls far short of satisfying the 25 extreme and outrageous standard for intentional infliction of emotional distress. As noted, 26 the Court credits Ms. Bailey’s Second Amended Complaint allegations as true. In so doing, 27 during the relevant period, Ms. Bailey perceived her employment status as stressful, 28 uncertain, unfair and, perhaps, toxic. The facts alleged, however, do not resemble the type 1 of conduct that is “beyond all possible bounds of decency, and to be regarded as atrocious 2 and utterly intolerable in a civilized society.” Johnson, 197 Ariz. at 160. The facts, instead, 3 resemble a work environment where human resources professionals are trying to manage 4 a complex, multi-layered public agency and the attendant personnel challenges handled by 5 most organizations. Ms. Bailey’s supervisors and others may have behaved imperfectly. 6 But the Second Amended Complaint does not present “extreme and outrageous” conduct 7 by City personnel, as that concept has been formulated and applied by the Arizona state 8 courts. See Mintz v. Bell Atl. Sys. Leasing Int’l, Inc., 183 Ariz. 550, 554 (App. 1995) (“[I]t 9 is extremely rare to find conduct in the employment context that will rise to the level of 10 outrageousness necessary to provide a basis for recovery for the tort of intentional infliction 11 of emotional distress.”) (quoting Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3rd Cir. 12 1988)). Count 1 will be dismissed. 13 B. Federal Civil Rights Claims 14 1. First Amendment Free Speech Retaliation 15 Count 2 asserts a claim under the Civil Rights Act, 42 U.S.C. § 1983, for free speech 16 retaliation against the City and Ms. Bays. The Second Amended Complaint does not 17 identify any protected speech or any speech that constitutes a matter of public concern. See 18 Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 19 205, Will Cnty., Ill., 391 U.S. 563 (1968). Nor does the Second Amended Complaint 20 identify any speech falling outside the scope of Ms. Bailey’s duties as a City employee. 21 See Eng v. Cooley, 552 F.3d 1062, 1071 (9th Cir. 2009). Thus, the Second Amended 22 Complaint fails to state claims against the City and Ms. Bays for free speech retaliation.3 23 2. Monell Liability 24 Count 2 also asserts a free speech retaliation claim against the City for what Ms. 25 Bailey alleges is an established municipal policy or custom related to the retaliatory 26 conduct. Under the doctrine established in Monell v. Department of Soc. Services of City 27 of New York, 436 U.S. 658 (1978), a municipality is subject to liability under § 1983 only 28 3 The Court need not address Ms. Bays’ qualified immunity argument because the Second Amended Complaint fails to state a free speech retaliation claim altogether. 1 if “a municipality’s policy or custom caused a violation of the plaintiff’s constitutional 2 rights.” Ass’n for L.A. Deputy Sheriffs v. County of Los Angeles, 648 F.3d 986, 992-93 (9th 3 Cir. 2011). 4 The Second Amended Complaint alleges that “[t]he Defendant City had policies 5 and procedures in place that Defendant Bays also knew, as manager, Bailey was supposed 6 to follow.” (Doc. 13 at ¶ 99.) It also contends that the City was “deliberately indifferent” 7 to Ms. Bays’ behavior. (Id. ¶ 97.) The Second Amended Complaint apparently theorizes 8 that the City should be held liable under Monell because Ms. Bays failed to follow policy 9 certain equal employment opportunity and ethics policies when retaliating against her. (Id. 10 ¶¶ 97-100.) 11 The Second Amended Complaint does not allege any municipal policy or custom 12 that caused the violation of Ms. Bailey’s constitutional rights. Instead, it alleges that Ms. 13 Bays failed to follow certain policies. Further, the Second Amended Complaint asserts 14 boilerplate allegations, such as that the City was “deliberately indifferent” to Ms. Bailey’s 15 situation. All in all, this theory does not support a Monell claim. To the extent that Count 16 2 alleges a claim against the City, it will be dismissed. 17 IV. 18 Ms. Bailey amended her complaint early in this case in response to Defendants’ first 19 LRCiv 12.1(c) pre-motion meet-and-confer. (Doc. 3 at 2.) The Court’s September 20, 2022 20 Order then identified substantial pleading deficiencies in each claim for relief and gave Ms. 21 Bailey an opportunity to amend once more. Having found that the Second Amended 22 Complaint fails to state any cognizable claims for relief, the Court now concludes that any 23 further amendment would be futile. The Second Amended Complaint will be dismissed 24 with prejudice. 25 … 26 … 27 … 28 … 1 V. 2 For all these reasons, 3 IT IS ORDERED: 4 1. The Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. 14) is 5|| granted. 6 2. The Second Amended Complaint (Doc. 13) is dismissed with prejudice. 7 3. The Clerk of Court is instructed to enter judgment in Defendants’ favor and 8 || close this case. 9 Dated this 10th day of February, 2023. 10 Michal T. dihurdle 12 Michael T. Liburdi 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-