Adams v. Kiewit Infrastructure West Company et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Bathsheba Nichole Adams,
Plaintiff,
v.
Kiewit Infrastructure West Company, et al.,
Defendants.
No. CV-25-01823-PHX-DJH
ORDER
On July 1, 2025, Defendant Kiewit Infrastructure West Co. (“Defendant” or
“Kiewit”) filed a Motion to Dismiss Plaintiff’s First Amended Complaint (“FAC”), under
Rules 12(b)(1) and 12(b)(6). (Doc. 12). Plaintiff Bathsheba Nichole Adams (“Plaintiff”)
filed a Response in Opposition (Doc. 15), and Defendant thereafter filed a Reply.
(Doc. 18).
I. Background
Defendant Kiewit is a construction company that operates in the State of Arizona.
(Doc. 9 at ¶ 3). Plaintiff was previously employed by Defendant and worked in the
construction industry. (Id. at ¶¶ 10–12). During her employment, Plaintiff faced “multiple
alarming incidents involving Kiewit’s foreman, [Defendant Robert Young], who subjected
Plaintiff to ongoing physical assaults, harassment and retaliation.” (Id. at ¶ 12). While
Plaintiff alleges several instances of discriminatory conduct, the FAC is premised not on
discrimination, but rather several discrete incidents occurring between Plaintiff and
Defendant Robert Young (“Young”). The specific episodes Plaintiff alleges are:
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• “On or about April 25, 2024, Young exposed Plaintiff to a chemical without
providing any warning or safety information, causing Plaintiff to experience an
allergic reaction that affected her nose, throat, and breathing…While Plaintiff was
experiencing a medical emergency, Young refused to show Plaintiff the safety
instructions, or assist in any way,” (id. at ¶¶ 25–27);
• “On or about April 28, 2024, Young referenced the TV show ‘The Walking Dead’
and stated he would have shot a character named Andrea for ‘talking too much’”
this was “a thinly veiled threat directed at Plaintiff” and “[t]he following day, Young
acted out this scenario by holding up what Plaintiff describes as a work machine
gun [later identified as a Milwaukee concrete chipping hammer] to Plaintiff’s
forehead and saying ‘bang,’” (id. at ¶¶ 29–31, 34);
• “While Plaintiff was using a portable toilet, Young instructed colleagues to move it,
forcing Plaintiff to rush out and soil her clothes, leaving Plaintiff humiliated and
traumatized,” (id. at ¶ 38); and
• “On or about May 1, 2024, Young left Plaintiff, and her coworker, stranded by the
roadside in a dead zone, forcing Plaintiff to hitchhike back to her vehicle…When
confronted about leaving Plaintiff stranded, Young used profanity and issued threats
against Plaintiff.” (Id. at ¶¶ 44–45).
“The incidents regarding the portable toilet, the exposure to the unknown chemical,
and the chipping hammer were intended to cause Plaintiff harm.” (Id. at ¶ 54). As a result
of the above incidents, Plaintiff has suffered severe emotional distress and “can no longer
work without the fear of further incidents caused by Kiewit.” (Id. at ¶ 55). Plaintiff
ultimately left her job with Kiewit, and she filed a Charge of Discrimination, “related to
the discriminatory conduct only.” (Id. at ¶¶ 51–52). Plaintiff then brought this suit against
Defendants based on the tortious conduct that she allegedly endured at Kiewit. Although
initially filed in state court, Defendants removed the case on May 27, 2025. (See Doc. 1).
Plaintiff filed her FAC on June 17, 2025, bringing Count I for intentional infliction of
emotional distress (“IIED”), Count II for assault and battery, Count III for negligent
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supervision and training, and Count IV for punitive damages. (Doc. 9 at ¶¶ 57–86). Kiewit
now moves to dismiss Plaintiff’s FAC.
II. Legal Standard
A motion to dismiss under Rule 12(b)(1) challenges the subject matter jurisdiction
of the court. See Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039–40 (9th Cir.
2003). A jurisdictional attack can be facial or factual. Safe Air for Everyone v. Meyer, 373
F.3d 1035, 1039 (9th Cir. 2004). Facial attacks assert that “the allegations contained in a
complaint are insufficient on their face to invoke federal jurisdiction.” Id. “By contrast,
in a factual attack, the challenger disputes the truth of the allegations that, by themselves,
would otherwise invoke federal jurisdiction.” Id. With a factual attack, a court may review
evidence beyond the complaint without converting the motion into one for summary
judgment, and it “need not presume the truthfulness of the plaintiffs’ allegations.” White
v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). The plaintiff must show that the court in
question has jurisdiction to hear their case. See Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994). A court must dismiss a plaintiff’s complaint if it fails to establish
subject matter jurisdiction. Savage, 343 F.3d at 1039 n.2.
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a claim.
Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011). Complaints must make a short and
plain statement showing that the pleader is entitled to relief for its claims.
Fed. R. Civ. P. 8(a)(2). This standard does not require “‘detailed factual allegations,’ but
it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). There must be “more than a sheer possibility that a defendant has acted
unlawfully.” Id. A plaintiff must allege facts sufficient to “raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. A complaint must “state a claim to relief
that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Determining
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whether a complaint states a plausible claim for relief will . . . be a context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.”
Id. at 679.
Dismissal of a complaint for failure to state a claim may be based on either the “lack
of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable
legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). In
reviewing a motion to dismiss, courts will “accept factual allegations in the complaint as
true and construe the pleadings in the light most favorable to the nonmoving party.”
Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But
courts are not required “to accept as true a legal conclusion couched as a factual allegation.”
Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
III. Discussion
Defendant raises several arguments that dismissal is warranted, including that
Plaintiff’s tort claims are preempted by the Arizona Employment Protection Act (“AEPA”)
and the Arizona Civil Rights Act (“ACRA”), Plaintiff failed to exhaust her administrative
remedies, Plaintiff’s exclusive remedy is under the Worker’s Compensation Act, and
Plaintiff does not adequately plead vicarious liability. (Doc. 12 at 4–9). Plaintiff disagrees
with Defendant on each argument and maintains that her claims are sufficiently pled.
(See generally Doc. 15). The Court will address Defendant’s arguments in turn.
A. The AEPA and ACRA
Defendant first argues that Plaintiff’s common law tort claims are preempted by the
AEPA and the ACRA.1 (Doc. 12 at 4). It claims that the workplace harassment Plaintiff
alleges “are intertwined with claims of discrimination and protected activity.” (Id.)
However, none of the case law cited by Defendant supports its position that Plaintiff’s
1 Initially, the Court notes that the issue here is not whether the AEPA or the ACRA
“preempts” Plaintiff’s tort claims, rather it is whether either of these statutes provides
Plaintiff with her exclusive remedy. Valdez v. National Retail Transportation, Inc., 2016
WL 2992489, *1 n. 1 (C.D. Cal. 2016) (“A state law claim is preempted by federal law,
not other provisions of state law.”); Moscona v. California Business Bureau, Inc., 2011
WL 5085522, *4 (S.D. Cal. 2011) (“[F]ederal law may preempt state laws, not other federal
laws.”).
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claims are precluded by either statute, and the cases regard only claims that were
invalidated by the AEPA, not the ACRA.
It has been established that the AEPA “is the exclusive remedy for terminations that
violate public policy statutes, and a plaintiff is therefore limited to the remedies provided
under statute.” Fallar v. Compuware Corp., 202 F. Supp. 2d 1067, 1076 (D. Ariz. 2002).
The common law claim of tortious wrongful termination in violation of the ACRA has
been abrogated by the AEPA, but no case has ruled that all common law tort claims are
precluded by the statute. Cronin v. Sheldon, 991 P.2d 231, 240-41 (Ariz. 1999). In fact,
the Cronin court acknowledged:
Importantly, the EPA does not preclude recovery of compensatory damages
under federal law within parameters authorized by Title VII of the Civil
Rights Act of 1964, nor does it preclude wrongfully terminated employees
from pursuing collateral common law tort claims related to discharge from
employment, including intentional infliction of emotional distress, negligent
infliction of emotional distress, interference with contractual relations, or
defamation. Nor does today’s decision affect such common law causes of
action as assault and battery, fraud, and other protected claims.
Id. at 241 (internal citations omitted). Summarizing its holding, the Cronin court stated,
“while the EPA precludes petitioners’ ACRA-based claims for compensatory and punitive
damages for tortious wrongful discharge, a panoply of constitutionally protected common
law tort remedies remains undisturbed as fully beyond the scope of the EPA.” Id.
The authority cited by Defendant reaffirms that a claim of termination in violation
of public policy is precluded by the AEPA. See Fallar, 202 F. Supp. 2d at 1076 (dismissing
the plaintiff’s termination in violation of public policy tort claim as the AEPA “is the
exclusive remedy for terminations that violate public policy statutes”); Taylor v. Graham
Cnty. Chamber of Com., 33 P.3d 518, 521–22 (Ariz. Ct. App. 2001) (concluding that the
plaintiff’s wrongful termination in violation of the ACRA tort claim was barred under the
plain language of the AEPA); Peterson v. City of Surprise, 418 P.3d 1020, 1025 (Ariz. Ct.
App. 2018) (“Because [plaintiff] forfeited her exclusive remedy for sex discrimination
under the [ACRA] by failing to file an administrative charge, the EPA does not permit her
to refashion her discrimination claim into a retaliation claim under § 23–
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1501(A)(3)(c)(ii).”).
At most, the AEPA has precluded a negligence claim based on employment
discrimination and a negligence per se claim for violations of the ACRA. See De Silva v.
Pima Cnty. Government, 2024 WL 4751574, *14 (D. Ariz. 2024). Acknowledging the
ruling in Cronin, the De Silva court concluded that, “while the EPA does not preclude all
common law tort claims, it does preclude common law tort claims for employment
discrimination where there exists a statute that provides a remedy for that discrimination.”
Id. Critically, here, Plaintiff does not bring tort claims based on employment
discrimination. None of the claims alleged by Plaintiff—IIED, assault and battery, or
negligent supervision—requires a showing of any discriminatory conduct based on a
protected status. So, the claims do not conflict with either statutory scheme.
Defendants do not provide any authority that supports the notion that Plaintiff’s
battery, IIED, and negligent supervision claims are prohibited by either the AEPA or the
ACRA.2 In fact, the Cronin court noted the availability of several of Plaintiff’s claims,
notwithstanding the AEPA. Therefore, the Court will not dismiss Plaintiff’s tort claims
under either the ACRA or the AEPA.
B. Exhaustion of Administrative Remedies
Defendant next argues that Plaintiff failed to file a timely charge with the Equal
Employment Opportunities Commission (“EEOC”) or Arizona Civil Rights Division
(“ACRD”), and therefore she cannot bring a claim under ACRA or recast her statutory
claim as tort claims. (Doc. 12 at 6–7).
Under the ACRA, “the filing of a charge of discrimination with an administrative
agency is a prerequisite to filing a lawsuit on the alleged discrimination.” Madden-Tyler
v. Maricopa Cnty., 943 P.2d 822, 828 (Ariz. Ct. App. 1997). For a charge to be timely, it
2 Defendant is cautioned to exercise greater care when citing legal authority to the Court.
Defendant cites a quoted portion of Fallar stating “the AEPA precludes all common law
tort claims that arise from the same facts as statutory discrimination or retaliation claims”
and a quoted portion of Peterson stating “where the same conduct forms the basis of both
statutory and common law claims, the statutory remedy is exclusive.” (Doc. 12 at 4;
Doc. 18 at 2–3). However, neither of these quotes appears in their respective case, nor do
Fallar or Peterson stand for such a proposition. Defendant is reminded that it has a duty
to verify the accuracy of any referenced case law.
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must be filed within 180 days after the alleged unlawful employment practice occurred.
See A.R.S. § 41-1481(A); Ornelas v. Scoa Industries, Inc., 587 P.2d 266, 266 (Ariz. Ct.
App. 1978). Nonetheless, Plaintiff is not attempting to bring a claim under the ACRA or
Title VII (see Doc. 9 at ¶¶ 57–86), so this timeframe is immaterial here. Stone v. Charles
Schwab & Co. Inc., 2025 WL 2829563, *2 (D. Ariz. 2025) (“To bring an ACRA claim
against an employer, a plaintiff must file a charge of discrimination within 180 days of the
alleged unlawful employment practice.”) (emphasis added).
As to the latter portion of its argument, Defendants have not provided any authority
demonstrating that Plaintiff’s tort claims may not proceed. Defendant claims that, because
Plaintiff forfeited her statutory claim based on her untimely charge, she “cannot now recast
these claims as torts and render the limitation periods in the ACRA and Title VII
meaningless.” (Doc. 18 at 5). Albeit the only case Defendants cite to support this
proposition is Peterson. There, the plaintiff failed to timely file a charge with the ACRD,
and it was therefore undisputed that the plaintiff could not sue under the AEPA for
termination in violation of the ACRA. Peterson, 418 P.3d at 1024. For that reason, the
plaintiff framed her claim as a constructive discharge in retaliation for reporting violations
of the ACRA. Id. While the AEPA allows an employee to bring suit for termination in
violation of a statute, “[i]f the statute provides a remedy to an employee for a violation of
the statute, the remedies provided to an employee for a violation of the statute are the
exclusive remedies for the violation of the statute or the public policy prescribed in or
arising out of the statute.” Id. at 1025 (citing A.R.S. § 23-1501(A)(3)(b)). Based on this
provision and the plaintiff’s forfeiture of her exclusive remedy for sex discrimination under
the ACRA, the court held that “the EPA does not permit her to refashion her discrimination
claim into a retaliation claim[.]” Id.
In short, the holding in Peterson turned on the specific provisions of the AEPA and
was solely in regard to an AEPA retaliation claim. See also Bodett v. CoxCom, Inc., 366
F.3d 736, 746 (9th Cir. 2004) (employee waived claim for retaliation under what is now
§ 23–1501(A)(3)(c) by failing to exhaust administrative remedies under the Arizona Civil
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Rights Act). The Court, accordingly, will not dismiss Plaintiff’s common law tort claims
based on Peterson.
C. Worker’s Compensation Act
Alternatively, Defendant contends that Plaintiff’s claims are barred by the Workers’
Compensation Act because it provides the exclusive remedy for workplace injuries.
(Doc. 12 at 7–8). Plaintiff responds that the alleged actions constitute willful misconduct
such that the exclusive remedy provision does not apply. (Doc. 15 at 7).
The Workers’ Compensation Act provides a statutory scheme for a “workers’
compensation system designed to provide compensation for accidental injuries arising out
of the course of employment.” Stoecker v. Brush Wellman, Inc., 984 P.2d 534, 536
(Ariz. 1999). Subject to certain exceptions, § 23-1022(A) provides: “The right to recover
[workers’] compensation…for injuries sustained by an employee…is the exclusive remedy
against the employer or any co-employee acting in the scope of his employment.” And the
Act further provides that an “employee…who accepts compensation waives the right to
exercise any option to institute proceedings in court against his employer or any co-
employee acting within the scope of his employment[.]” A.R.S. § 23-1024(A). “Pursuant
to those statutes, unless an employee who is injured on the job has previously rejected the
workers’ compensation system, the superior court lacks subject matter jurisdiction over
any common law tort action that the employee files against a [co-employee] acting within
the scope of his or her employment.” Mitchell v. Gamble, 86 P.3d 944, 947 (Ariz. Ct. App.
2004).
However, “[t]he exclusive remedy provisions of Arizona’s workers compensation
statutes do not apply when the employee’s injury is caused by an employer’s ‘willful
misconduct,’ which is defined as ‘an act done knowingly and purposely with the direct
object of injuring another.’ ” Mosakowski v. PSS World Med., Inc., 329 F. Supp. 2d 1112,
1129 (D. Ariz. 2003) (citing A.R.S. §§ 23-1022(A-B)). Under this definition, “the alleged
negligence or wantonness must be accompanied by the employer’s intent to inflict injury
upon the employee.” Id.
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Here, taking the allegations as true, Plaintiff has alleged that the “incidents
regarding the portable toilet, the exposure to the unknown chemical, and the chipping
hammer were intended to cause Plaintiff harm.” (Doc. 9 at ¶ 54). Plaintiff’s IIED claim
is further supported by allegations that “Defendants’ conduct was intentional and/or
reckless, as evidenced by their position of authority over Plaintiff as foreman and
management,” and “Defendants’ misconduct was wilful all of which indicates a wilful
disregard for Plaintiff’s life, limb or bodily safety.” (Id. at ¶¶ 63–64). Moreover, in
reconciling the holdings of two Arizona cases, the Mosakowski court stated, “a negligence
claim is precluded by the workers compensation statutes while a claim for intentional
infliction of emotional distress is not precluded.” Mosakowski, 329 F. Supp. 2d at 1131.
As for assault and battery, Plaintiff’s claim references intentional conduct like knowingly
instructing workers to move a portable toilet while Plaintiff was inside of it and “[h]olding
a machine gun to Plaintiff’s forehead and threatening to shoot her[.]” (Doc. 9 at ¶¶ 68–
69). For this stage of proceedings, Plaintiff has adequately alleged an intent to inflict injury
as well as conduct that can be inferred was intended to cause injury. Thus, Plaintiff may
maintain her Counts I and II for IIED and assault and battery.
That said, Plaintiff’s negligent training and supervision claim is alleged against only
Defendant Kiewit and is based upon Kiewit’s failure to exercise ordinary care. (See id. at
¶¶ 74–78). Plaintiff alleges negligent acts such as failure to exercise ordinary care in
investigating incidents, training employees on how to safely use tools, and providing
discipline to its employees. (Id. at ¶ 76). However, Plaintiff fails to establish any
wilfulness on Kiewit’s part. Moreover, courts, examining similar claims, have determined
that allegations of an employee’s wilful acts do not establish the wilful misconduct
exception regarding a negligent supervision claim against an employer. See Lewis v.
Arizona, 2011 WL 3665367, *3 (D. Ariz. 2011) (“[E]ven if…any [] employee acted
wilfully when they allegedly harassed Plaintiff, Plaintiff’s claim for negligent supervision
and hiring against Defendant does not come under the wilful misconduct exception of
Arizona’s workers’ compensation statute.”); Rosen v. Community Educ. Centers, Inc.,
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2010 WL 3981200, *4 (D. Ariz. 2010) (same).
Consequently, Plaintiff’s Count III for negligent supervision claim is dismissed.
However, this dismissal is without prejudice because, based on the information before the
Court, it cannot be said that any amendment would be inherently futile.
D. Vicarious Liability
Lastly, Defendant argues that Plaintiff has not sufficiently pled vicarious liability.
However, the FAC contains sufficient factual allegations to establish vicarious liability.
“Under the doctrine of respondeat superior, an employer is vicariously liable for the
negligent work-related actions of its employees.” Kopp v. Phys. Group of Arizona, Inc.,
421 P.3d 149, 151 (Ariz. 2018) (citation omitted). “For an employer to be held vicariously
liable for an employee’s negligent acts, the employee must be (1) subject to the employer’s
control or right of control, and (2) acting in furtherance of the employer’s business.”
Engler v. Gulf Interstate Engr., Inc., 258 P.3d 304, 309 (Ariz. Ct. App. 2011), aff’d, 280
P.3d 599 (Ariz. 2012).
While an allegation that “Defendant is liable for the actions of its employee, Robert
Young, under the doctrine of respondeat superior” is conclusory, this allegation is
supported by a claim that Defendant Young was acting as Kiewit’s foreman when he
engaged in the conduct. (Doc. 9 at ¶¶ 49–50). Plaintiff has further alleged that Young
instructed colleagues to move a portable toilet and threatened her with machinery used on
construction sites. (See id. at ¶¶ 31, 34, 38). Allegations such as these allow one to
reasonably infer that the Young’s conduct occurred during working hours, while he was
performing his duties as foreman. See Sheppard v. David Evans and Assoc., 694 F.3d
1045, 1051 (9th Cir. 2012) (drawing reasonable inferences in favor of the non-moving
party on a motion to dismiss). At bottom, Plaintiff has alleged that “[a]ll of the incidents
described herein occurred during work hours, on the worksite, incidental to Young’s duties
or in part to serve the purpose of Kiewit” (Id. at ¶ 72), which adequately provides Defendant
notice of the vicarious liability alleged against Kiewit.
IV. Motion to Strike
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Defendant filed a Request for Judicial Notice in support of its Reply to its Motion
to Dismiss. (Doc. 19). Plaintiff filed a Response in Opposition to Defendant’s Request.
(Doc. 20). Defendant subsequently filed a Motion to Strike Plaintiff’s Response, arguing
that the Response is an inappropriate sur-reply. (Doc. 21).
The Court did not take judicial notice of the documents requested by Defendant as
it was not necessary to assess the viability and sufficiency of Plaintiff’s FAC. Upon
determining that judicial notice was unnecessary to resolve Defendant’s Motion to
Dismiss, the Court did not further consider Defendant’s Request and therefore did not
consider Plaintiff’s Response in rendering this Order. As a result, Defendant’s Motion to
Strike is denied as moot.
Accordingly,
IT IS ORDERED that Defendant’s Motion to Dismiss Plaintiff’s FAC (Doc. 12) is
GRANTED in part and DENIED in part. Plaintiff’s Count III negligent supervision and
training claim is dismissed without prejudice.
IT IS FURTHER ORDERED that Defendant’s Motion to Strike Plaintiff’s
Response (Doc. 21) is DENIED as moot.
Dated this 19th day of February, 2026.
Honorable Diane J. Humetewa
United States District Judge
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