Escalante v. Vicar Operating Incorporated et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Raquel Escalante,
Plaintiff,
v.
Vicar Operating Incorporated, et al.,
Defendants.
No. CV-25-00339-TUC-RCC (LCK)
REPORT AND
RECOMMENDATION
Defendants Vicar Operating Incorporated, Jay Rising, Melissa Barlett, Melissa
Citro, Shanna Burhans, and Amy Bottari filed a Motion to Dismiss Plaintiff Raquel
Escalante's Amended Complaint pursuant to Federal Rule of Civil Procedure 8 and
12(b)(6).1 (Doc. 40.) Plaintiff responded, and Defendants replied. (Docs. 42, 43.) Pursuant
to the Rules of Practice of the Court, this matter was referred to Magistrate Judge Kimmins
for Report and Recommendation. The Magistrate Judge recommends the District Court,
after its independent review of the record, dismiss the Amended Complaint but grant
Plaintiff leave to amend.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff initiated this action in June 2025 (Doc. 1) and filed an Amended Complaint
on July 1, 2025, prior to the appearance of any Defendants (Doc. 18). In the Amended
Complaint, Plaintiff named six Defendants: Vicar Operating Incorporated, Jay Rising (HR
1 Defendants requested oral argument on their motion, but the Court has determined
that argument would not aid in its resolution of the motion. LRCiv 7.2(f).
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representative), Melissa Barlett (Senior Regional HR Partner), Melissa Citro (VCA Valley
Pet Resort Manager), Shanna Burhans, and Amy Bottari (Pet Resort Supervisor). Plaintiff
set forth the following facts in the Amended Complaint. (Id. at 8-12.) She alleged that,
prior to May 5, 2022, she had contacted Defendant Citro numerous times about harassment
and other concerns with no improvement. On May 5, 2022, she contacted Defendant Barlett
due to the same concerns in her workplace. In response, an HR partner appeared onsite,
but nothing improved. Plaintiff asserts that meetings initiated by Defendants were
unreasonably belated. Plaintiff felt "targeted and harassed and discriminated against" and
worked in a hostile environment. (Doc. 18 at 3.) Defendant Bottari criticized Plaintiff
constantly, hovered over her, and micromanaged her. Plaintiff was the only Native
American employee and the only one treated this way.
On May 10, 2022, Plaintiff's employer gave her a written warning regarding her
attendance, indicating "increasing concerns" over her attendance, which "ha[d] affected
morale," and demonstrated a "continued lack of reliability." (Id. at 8.) Plaintiff alleged she
had only five late arrivals, each of which had a justification and some of which had been
excused by Defendant Bottari. Plaintiff alleged that Defendant Citro took Ms. Bottari's side
on issues and blamed Plaintiff. Plaintiff alleged she did not feel she readily could bring
concerns to Defendant Citro and that Citro's attitude toward her had changed. On June 29,
2023, Defendant Burhans ignored Plaintiff's presence when asking another employee to
cover a shift. Instead of asking Plaintiff, a staff member from the hospital was asked to
cover a night shift.
At a July 17, 2024, meeting with Defendant Rising, Plaintiff was questioned about
work responsibilities on specific dates, which felt like an interrogation and harassment.
Plaintiff concluded that Defendants were searching for a reason to terminate her. When the
meeting concluded, Defendant Rising would not provide any information about next steps
or a timeline for further action. At that point, Plaintiff stated that she would be giving her
two-week notice, and Defendant Rising offered her paper to complete her notice right then.
Fifteen minutes later, an email went to all staff announcing her departure.
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Plaintiff alleged that she was subjected to retaliation, hostile work environment,
racial harassment, employer liability, micromanaging, targeting, and abuse of power. (Id.
at 12.) She cited 18 U.S.C. § 2261A, A.R.S. § 23-907, the Civil Rights Act of 1991, and
the National Labor Relations Act. (Id. at 4.) She requested $25 million in compensatory
and emotional damages. (Id. at 5.) Defendants' motion seeks dismissal of all claims with
prejudice.
STANDARD OF REVIEW
The United States Supreme Court has found that, to state a claim, a complaint must
allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). While a complaint need not plead "detailed
factual allegations," the factual allegations it does include "must be enough to raise a right
to relief above the speculative level." Id. at 555; see also Ashcroft v. Iqbal, 556 U.S. 662,
678-79 (2009) (interpreting Rule 8(a) and explaining that there must be specific, non-
conclusory factual allegations sufficient to support a finding by the court that the claims
are more than merely possible, they are plausible.). A mere formulaic recitation of the
elements of a cause of action is not sufficient to establish a claim, and legal conclusions
are not entitled to an assumption of truth. Iqbal, 556 U.S. at 679. Dismissal is only
appropriate if the complaint's factual allegations, together with all reasonable inferences
drawn in the plaintiff's favor, fail to state a plausible claim that Defendant is liable for the
alleged misconduct. Id. at 678.
Where the pleader is pro se, the pleading "should be liberally construed in the
interests of justice." Johnson v. Reagan, 524 F.2d 1123, 1124 (9th Cir. 1975); Erickson v.
Pardue, 551 U.S. 89, 94 (2007). However, the Court is not to serve as an advocate of a pro
se litigant in attempting to decipher a complaint. See e.g., Pliler v. Ford, 542 U.S. 225, 231
(2004) ("District judges have no obligation to act as counsel or paralegal to pro se litigants"
because this would undermine district judges' role as impartial decisionmakers); Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute as
stated in Lopez v. Smith, 160 F.3d 567 (9th Cir. 1998). Additionally, when a court grants
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dismissal, it "should grant leave to amend even if no request to amend the pleading was
made, unless it determines that the pleading could not possibly be cured by the allegation
of other facts." Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (quoting Cook,
Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990)).
DISCUSSION
In their motion, Defendants seek dismissal of Plaintiff's Amended Complaint, in
entirety and with prejudice. Plaintiff did not set forth separately numbered claims in the
Amended Complaint but listed several statutes as the basis for jurisdiction, 18 U.S.C.
§ 2261A, A.R.S. § 23-907, the National Labor Relations Act, and the Civil Rights Act of
1991. The Court examines whether the Amended Complaint has stated a cause of action
under those statutes or on any other legal basis.
18 U.S.C. § 2261A
This statute criminalizes certain behavior classified as stalking: travelling between
jurisdictions, using the mail or electronic communication, or placing under surveillance
"with the intent to kill, injure, harass, intimidate" another person. 18 U.S.C. § 2261A (1)
& (2). Although Plaintiff alleged she was harassed at her workplace, she did not allege that
any Defendants engaged in conduct that meets the statutory elements for stalking.
Additionally, in general, "a private party may not enforce a criminal statute through a civil
action." Smith v. Am. Red Cross, No. CV-2002-0010-TUC-DCB-LAB, 2020 WL 4904240,
at *2 (D. Ariz. Aug. 20, 2020). And the criminal statute cited by Plaintiff does not provide
a basis for a private right of action through civil litigation. See Doe v. McCollum, No. CV-
25-01774-PHX-MTL, 2025 WL 2614707, at *2 (D. Ariz. Sept. 10, 2025); Kruska v.
Perverted Just. Found. Inc., No. CV-08-0054-PHX-SMM, 2008 WL 2705377, at *2 (D.
Ariz. July 9, 2008). Therefore, Plaintiff's assertion of a claim under 18 U.S.C. § 2261A
must be dismissed. Because there are no facts Plaintiff could allege to support a private
right of action under this statute, a claim pursuant to this statute should be dismissed with
prejudice.
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A.R.S. § 23-907
Pursuant to this statute, an employee that is injured on the job may bring suit against
an employer that fails to procure worker's compensation, or the employee may choose to
seek compensation from the state Industrial Commission. A.R.S. § 23-907(A) & (B); see
also A.R.S. § 23-1024. Plaintiff did not allege that her employer failed to maintain worker's
compensation or that she was injured in the course of her employment. Therefore,
Plaintiff's claim based on A.R.S. § 23-907 must be dismissed. In her motion response,
Plaintiff did not address Defendants' argument about this statute. And she did not suggest
that she could allege an on-the-job injury or that her employer failed to carry worker's
compensation insurance. Therefore, the Court finds this claim should be dismissed with
prejudice.
National Labor Relations Act (NLRA)
This 	law 	was 	passed 	to 	facilitate 	employees 	in 	organizing 	and 	collectively
bargaining over the terms of their employment. 29 U.S.C. §§ 151, 157. Employers are
deemed to have engaged in unfair labor practices under the Act if they interfere with, or
discriminate against, employees that exercise their rights to organize, or refuse to bargain
collectively with employee representatives. 29 U.S.C. § 158(a). Plaintiff has not alleged
that Defendants impeded her rights under the NLRA or discriminated against her for
exercising her rights under this Act. Therefore, her claim based on the NLRA must be
dismissed. Further, "the National Labor Relations Board (NLRB or Board) has exclusive
jurisdiction to prevent and remedy unfair labor practices by employers." Golden State
Transit Corp. v. City of Los Angeles, 493 U.S. 103, 108 (1989). Therefore, this Court does
not have jurisdiction to adjudicate a dispute that Plaintiff may have against her employer
under the NLRA. Radcliffe v. Rainbow Const. Co., 254 F.3d 772, 781 (9th Cir. 2001)
(upholding the dismissal of unfair labor practices claim under the NLRA by union
representatives because those claims were "within the exclusive jurisdiction of the
NLRB"). For that reason, Plaintiff's allegation of a violation of the NLRA must be
dismissed with prejudice.
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Employment Discrimination
Plaintiff alleged she was discriminated against based on her race, Native American,
and that she was subjected to harassment and retaliation in her workplace. The only statute
she cited that relates to employment discrimination is the Civil Rights Act of 1991, 42
U.S.C. § 1981a. However, that 1991 act is merely a damages statute for claims of
discrimination arising under other statutes. "Section § 1981a does not create a new
substantive right or cause of action." Daniels v. Donahoe, 901 F. Supp. 2d 1238, 1247 (D.
Haw. 2012) (quoting Huckabay v. Moore, 142 F.3d 233, 241 (5th Cir. 1998)); see Pimentel
v. Orloff, No. C-08-0249 MMC, 2008 WL 3876173, at *2 (N.D. Cal. Aug. 19, 2008);
Simmons v. Modly, No. 19-CV-1448 JLS (WVG), 2020 WL 4784739, at *7 (S.D. Cal. Aug.
18, 2020) (According to the "plain language of the statute . . . [§ 1981a] merely provides
an additional remedy for 'unlawful intentional discrimination . . . prohibited under . . . 42
U.S.C. § 2000e-2 or 2000e-3.'") (quoting Huckabay, 142 F.3d at 241); 42 U.S.C. § 1981a
(titled "Damages in cases of intentional discrimination in employment"). Although the
statute may be relevant to discrimination claims brought pursuant to other statutes, it does
not provide for an independent cause of action. Therefore, any claims premised on the Civil
Rights Act of 1991 must be dismissed with prejudice.
Discrimination Based on Race
The core of Plaintiff's Amended Complaint are her allegations of unlawful treatment
due to her race. Therefore, the Court examines whether her allegations state a claim under
Title VII, the primary federal statute addressing racial discrimination in the workplace.
Although not mentioned in the Amended Complaint, Plaintiff cited Title VII as a basis for
liability in her motion response. (Doc. 42 at 2.)
A disparate treatment claim is one in which an individual is treated less favorably
than others similarly situated to her based on a prohibited criterion, such as race. Jauregui
v. City of Glendale, 852 F.2d 1128, 1134 (9th Cir. 1988) (quoting Gay v. Waiters' and
Dairy Lunchmen's Union, 694 F.2d 531, 537 (9th Cir. 1982)). A plaintiff's "prima facie
case may be based either on a presumption arising from the factors such as those set forth
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in McDonnell Douglas, or by more direct evidence of discriminatory intent." Godwin v.
Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998), as amended (Aug. 11, 1998)
(quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)). The McDonnell
Douglas factors require Plaintiff to allege that: "(1) she belongs to a protected class, (2) she
was performing according to her employer's legitimate expectations, (3) she suffered an
adverse employment action, and (4) other employees with qualifications similar to her own
were treated more favorably." Godwin, 150 F.3d at 1220 (citing McDonnell Douglas Corp.
v. Green, 411 U.S. 802 (1973)).
In the Amended Complaint, Plaintiff alleged that she belongs to a protected class
because she is Native American. She did not clearly allege that she was performing to her
employer's expectations, she suffered an adverse employment action, or other similar
employees were treated more favorably than she was. She also did not allege direct
evidence that her employer treated her with discriminatory intent. Thus, Plaintiff's
allegations of employment discrimination fail to state a Title VII claim and must be
dismissed. However, because it is possible that Plaintiff could allege facts sufficient to state
a claim, the Court further discusses the individual elements for purposes of amendment.
As to the second element, Plaintiff included no allegations indicating that she was
performing according to expectations. Instead, she alleged that her employer had given her
a written warning, but she alleges it was not warranted (which may evince unfair treatment)
Regardless, the Court cannot rule out the possibility that Plaintiff could allege facts
indicating that she was performing satisfactorily. As to the fourth element, Plaintiff alleged
that other employees were not treated in the negative way that she was treated, but she did
not allege those employees were similarly situated. It is possible she could amend to add
facts that would meet satisfy this element.
The third element requires that Plaintiff suffered an adverse employment action.
"For claims of disparate treatment under Title VII, an adverse employment action is one
that 'materially affects the compensation, terms, conditions, or privileges of employment.'"
Campbell v. Hawaii Dep't of Educ., 892 F.3d 1005, 1012 (9th Cir. 2018) (quoting Davis v.
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Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008)). This can include actions taken
against an employee, such as a demotion or termination, or denying an employee a benefit
that was "otherwise available to her." Id. at 1013. Plaintiff alleged she was given a written
warning based on being tardy to work. (Doc. 18 at 8.) This might qualify as an adverse
employment action but only if it materially affected the terms of her employment. See
Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th Cir. 2004) (finding a
warning letter can be an adverse employment action) (citing Yartzoff v. Thomas, 809 F.2d
1371, 1376 (9th Cir. 1987)); Overton v. Mayorkas, 754 F. Supp. 3d 862, 874 (D. Ariz.
2024) (finding a letter of reprimand was not an adverse employment action because it did
not cause any employment consequences and was retained in her file for a maximum of
two years). Plaintiff also alleged that a member of management ignored her in front of
another employee and did not offer her the opportunity to cover an extra night shift. (Doc.
18 at 9.) "Mere ostracism in the workplace" such as unkind treatment is not an adverse
employment action. Manatt v. Bank of Am., NA, 339 F.3d 792, 803 (9th Cir. 2003) (finding
a supervisor staring angrily and allowing coworkers to be mean did not rise to an adverse
action). However, denial of additional shifts could be an adverse employment consequence
if 	it 	was 	a 	benefit 	"otherwise 	available" 	to 	Plaintiff 	and 	materially 	affected 	her
compensation or terms of employment. The Amended Complaint does not sufficiently
allege an adverse employment action, but it is possible Plaintiff could amend to make
sufficient allegations as to this element.
Retaliation
Plaintiff made a conclusory allegation that her employer and supervisors retaliated
against her, but she did not allege the elements of a retaliation claim. To establish a
retaliation claim, Plaintiff must show that she engaged in a protected activity, she was
subjected to an adverse employment decision, and the adverse action was causally linked
to her protected activity. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th
Cir. 2002). Plaintiff has failed to allege what protected activity she engaged in and how it
was connected to one or more adverse employment actions. Therefore, she has failed to
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state a claim for retaliation. The Court further examines each element for purposes of
amendment.
Title VII offers employees protection for two types of protected activity, as set forth
in the "opposition clause" and the "participation clause." Sias v. City Demonstration
Agency, 588 F.2d 692, 694-95 (9th Cir. 1978). "It shall be an unlawful employment practice
for an employer to discriminate against any of his employees . . . because he has opposed
any practice made an unlawful employment practice by this subchapter, or because he has
made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). The participation
clause protects involvement only in proceedings established by Congress to protect
employee rights against discrimination, which includes EEOC charges (and subsequent
administrative proceedings) and civil court actions. See Vasconcelos v. Meese, 907 F.2d
111, 113 (9th Cir. 1990); 42 U.S.C. §§ 2000e-5, 2000e-6, 2000e-9. Neither the Amended
Complaint nor Plaintiff's motion response contain allegations indicating that Plaintiff
participated in a Title VII charge while working for Defendants. Therefore, it does not
appear the participation clause is implicated.
The Court next examines the opposition clause of Title VII. In the Amended
Complaint, Plaintiff alleged she made internal complaints to her supervisors about her
treatment. These direct communications with her employer could come within the
opposition clause. See Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1313
(6th Cir. 1989). However, the clause protects employees only if they oppose "what they
reasonably perceive as discrimination" under Title VII, meaning discrimination against
employees protected by Title VII based on "race, color, religion, sex, or national origin."
Learned v. City of Bellevue, 860 F.2d 928, 932 (9th Cir. 1988); Moyo v. Gomez, 40 F.3d
982, 984 (9th Cir. 1994). Thus, Plaintiff's internal complaints may be protected by the
opposition clause but only if they opposed discriminatory conduct. See Jurado v. Eleven-
Fifty Corp., 813 F.2d 1406, 1411-12 (9th Cir. 1987) (dismissing retaliation claim based on
opposition to employer conduct based on personal reasons not racial discrimination);
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Amobi v. Ariz. Bd. of Regents, No. 2:10-CV-01561-JWS, 2011 WL 308466, at *5 (D. Ariz.
Jan. 28, 2011) (dismissing retaliation claim in absence of allegation that plaintiff
complained to defendants that she was being discriminated against based on her race or
national origin); Ahuvia v. Wyndham Vacation Resorts, Inc., 988 F. Supp. 2d 1184, 1192-
93 (D. Haw. 2013) (finding complaints of favoritism not a protected activity and collecting
relevant cases). In the Amended Complaint, Plaintiff made only general allegations stating
she complained to her employer about harassment and discrimination. On amendment, it's
possible Plaintiff could allege that she complained of discrimination based on race.
The range of adverse employment actions for a retaliation claim is broad and
includes actions that "'a reasonable employee would have found 	. . . materially adverse,
which in this context means it well might have dissuaded a reasonable worker from making
or supporting a charge of discrimination.'" Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)).
Trivial employment actions that would not have a deterrent effect do not qualify; however,
examples of qualifying actions are "termination, dissemination of a negative employment
reference, issuance of an undeserved negative performance review and refusal to consider
for promotion." Brooks v. City of San Mateo, 229 F.3d 917, 928-29 (9th Cir. 2000).
Whether a particular action by an employer "is materially adverse depends upon the
circumstances of the particular case, and 'should be judged from the perspective of a
reasonable 	person 	in 	the 	plaintiff's 	position, 	considering 	all 	the 	circumstances.'"
Burlington, 548 U.S. at 71 (holding that reassignment of job duties not automatically
actionable but materially adverse when evidence shows new duties were more arduous,
less prestigious, and considered a lesser job) (quoting Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 81 (1998)).
The Ninth Circuit and this Court have held that "scolding" or criticizing an
employee does not qualify as an adverse employment action. Nunez v. City of Los Angeles,
147 F.3d 867, 874 (9th Cir. 1998); Hellman v. Weisberg, No. CV-06-1465-PHX-FJM, 2007
WL 4218973, at *6 (D. Ariz. Dec. 3, 2007), aff'd, 360 F. App'x 776 (9th Cir. 2009).
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Additionally, without more, a threatened dismissal is not an adverse employment action.
See Nunez, 147 F.3d at 874; Hellman, 2009 WL 5033643, at *2; Martines v. Las Vegas
Metro. Police Dep't, No. 2:12-CV-01441-LDG, 2014 WL 1307235, at *5 (D. Nev. Mar.
28, 2014) (finding a pre-termination hearing notice did not qualify as an adverse
employment action). Further, "an employee's decision to report discriminatory behavior
cannot immunize that employee from those petty slights or minor annoyances that often
take place at work and that all employees experience." See Burlington, 548 U.S. at 68
(citing B. Lindemann & P. Grossman, Employment Discrimination Law 669 (3d ed. 1996)
(noting that "courts have held that personality conflicts at work that generate antipathy"
and "'snubbing' by supervisors and co-workers" are not actionable under § 704(a))). Upon
amendment, it is possible Plaintiff could allege adverse employment actions that satisfy the
second element of a retaliation claim.
Finally, Plaintiff has not alleged that any adverse employment actions were causally
linked to her complaints about discriminatory treatment. Causation requires a showing that
one of the reasons for the adverse action was Plaintiff's protected activity and that "but for"
that activity she would not have been subjected to the adverse action. Villiarimo, 281 F.3d
at 1064-65 (quoting Ruggles v. Cal. Poly. State Univ., 797 F.2d 782, 785 (9th Cir. 1986)).
Causation can be "inferred from 'proximity in time between the protected action and the
allegedly retaliatory employment decision.'" Ray v. Henderson, 217 F.3d 1234, 1244 (9th
Cir. 2000) (quoting Yartzoff, 809 F.2d at 1371). A proximity inference may apply if the
adverse action occurs "fairly soon" after the plaintiff's protected activity. Villiarimo, 281
F.3d at 1065 ("A nearly 18-month lapse between protected activity and an adverse
employment action is simply too long, by itself, to give rise to an inference of causation.")
(quoting Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1009–10 (7th Cir. 2000)). Plaintiff
has failed to plead a causal link between protected activity and an adverse employment
action. An amended complaint would need to identify specific protected conduct and the
link between that conduct and specific adverse actions, including the timing of both
Plaintiff's conduct and alleged adverse actions.
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Hostile Work Environment
Plaintiff alleged that she was subjected to a hostile work environment, but she did
not substantiate that conclusory allegation with any specific facts. To establish a hostile
work environment, Plaintiff must establish that she was subjected to unwelcome conduct
based on her race, and that the "conduct was sufficiently severe or pervasive to alter the
conditions of . . . employment and create an abusive work environment." Manatt v. Bank
of Am., NA, 339 F.3d 792, 798 (9th Cir. 2003) ("teasing, offhand comments, and isolated
incidents" are not sufficient); Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1109-10 (9th Cir.
2000) (quoting Pavon v. Swift Trans. Co., Inc., 192 F.3d 902, 908 (9th Cir. 1999)). As to
the first element, plaintiff must have been "subjected to verbal or physical conduct of a
racial . . . nature." Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003), as
amended (Jan. 2, 2004). A plaintiff must establish that she believed the conduct to be
abusive and that a reasonable person would find it so; thus, the working conditions must
be subjectively and objectively offensive. Faragher v. City of Boca Raton, 524 U.S. 775,
787 (1998). Title VII is not a "general civility code"; thus, "the sporadic use of abusive
language . . . and occasional teasing" do not reach the extreme level required to state a
claim. Id. at 788 (quoting Oncale, 523 U.S. at 80; B. Lindemann & D. Kadue, Sexual
Harassment in Employment Law 175 (1992)). To the extent harassment is conducted by a
supervisor, the employer bears vicarious liability. Nichols v. Azteca Rest. Enters., Inc., 256
F.3d 864, 875 (9th Cir. 2001).
Plaintiff alleged that she was subjected to ongoing harassment by one or more
supervisors, but she did not allege the harassment was of a racial nature. Further her
allegations are too vague to qualify as sufficiently severe such that they altered her
conditions of employment. Plaintiff has failed to state a claim for a hostile work
environment; however, it is possible she could amend to state such a claim.
Constructive Discharge
In the Amended Complaint, Plaintiff alleged that after two years without a
resolution to her concerns from management, she resigned. (Doc. 18 at 12.) Because she
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alleged that she had been subjected to a hostile work environment, the Court looks at the
elements for constructive discharge. A court evaluates constructive discharge through an
objective lens, asking "[d]id working conditions become so intolerable that a reasonable
person in the employee's position would have felt compelled to resign?" Pa. State Police
v. Suders, 542 U.S. 129, 141 (2004); Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1110
(9th Cir. 1998). The Ninth Circuit also has defined constructive discharge as occurring
"when the working conditions deteriorate, as a result of discrimination, to the point that
they become 'sufficiently extraordinary and egregious to overcome the normal motivation
of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood
and to serve his or her employer.'" Brooks, 229 F.3d at 930 (quoting Turner v. Anheuser-
Busch, Inc., 7 Cal. 4th 1238, 1246, 876 P.2d 1022 (1994)). An employee must show "some
aggravating factors" such as "a continuous pattern of discriminatory treatment." Bergene
v. Salt River Project Agric. Improvement & Power Dist., 272 F.3d 1136, 1144 (9th Cir.
2001) (quoting Thomas v. Douglas, 877 F.2d 1428, 1434 (9th Cir. 1989)). Plaintiff did not
allege the elements of constructive discharge in the Amended Complaint, but it is not
impossible that she could allege such a claim upon amendment.
Exhaustion
This Court has subject matter jurisdiction over Title VII claims only to the extent
they were timely brought in a charge before the EEOC (or appropriate state agency).
Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002) (quoting B.K.B.
v. Maui Police Dept., 276 F.3d 1091, 1099 (9th Cir. 2002)). This Court's jurisdiction
encompasses allegations that "fell within the scope of the EEOC's actual investigation or
an EEOC investigation which can reasonably be expected to grow out of the charge of
discrimination." E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994). The Court
must construe Plaintiff's EEOC charge "with the utmost liberality." Id. (quoting Kaplan v.
Int'l Alliance of Theatrical & Stage Employees, 525 F.2d 1354, 1359 (9th Cir. 1975)). If
new allegations in the Amended Complaint are "like and reasonably related" to the
allegations in the EEOC charge, then the claims are exhausted. Id. (quoting Oubichon v. N.
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Am. Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973)). When evaluating exhaustion, the
Court may consider the basis alleged for the discrimination, the dates alleged in the charge,
the actors named in the charge, and the location of the alleged discrimination. Freeman,
291 F.3d at 636 (quoting B.K.B., 276 F.3d at 1100).
Plaintiff did not mention filing a discrimination charge with the EEOC or the
Arizona Attorney General's Office in her Amended Complaint. (Doc. 18.) In her motion
response, she indicated that she filed a charge with the EEOC and received a Notice of a
Right to Sue on March 12, 2025. (Doc. 42 at 2.) Plaintiff did not allege what was included
in her EEOC charge, and she did not attach a copy of her charge to the Complaint. For that
reason, it is not apparent that this Court has jurisdiction over her Amended Complaint. This
is yet another reason that her pleading is subject to dismissal.
Individual Defendants
Defendants contend that the named individual Defendants should be dismissed
because they are not properly named on a Title VII claim. Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e, et seq., prohibits employers from discriminating on the basis
of race, among other things. See 42 U.S.C. § 2000e-2(a). Because the named individuals
were not Plaintiff's employer, the statute does not allow a Title VII claim to be brought
against them. Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1058 (9th Cir. 2007) ("We
have long held that Title VII does not provide a separate cause of action against supervisors
or co-workers."). Because all claims other than Title VII are subject to dismissal with
prejudice, and Plaintiff cannot amend to state a Title VII claim against any individuals, the
individual Defendants Jay Rising, Melissa Barlett, Melissa Citro, Shanna Burhans, and
Amy Bottari must be dismissed with prejudice.
AMENDMENT
The Court determined that Plaintiff has failed to state a claim under any legal theory
in her Amended Complaint. However, the Court must grant Plaintiff leave to amend if there
is a possibility that she can cure the defects and state a claim. See Doe, 58 F.3d at 497. The
Court concluded that Plaintiff could not cure the defects and state a claim based on 18
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U.S.C. § 2261A, A.R.S. § 23-907, the Civil Rights Act of 1991, or the National Labor
Relations Act; therefore, amendment of those claims is not warranted. The Court found a
possibility that Plaintiff could amend to state various claims—discrimination based on
race, retaliation, hostile work environment, and constructive discharge—under Title VII
against Defendant Vicar Operating Incorporated only. Title VII claims may not be brought
against individuals; therefore, amendment is not warranted as to those Defendants.
When dismissing with leave to amend, a court is to provide reasons for the dismissal
so a plaintiff can make an intelligent decision whether to file an amended complaint. See
Bonanno v. Thomas, 309 F.2d 320, 322 (9th Cir. 1962); Eldridge v. Block, 832 F.2d 1132,
1136 (9th Cir. 1987). The Court has provided the reasons for dismissal of the Title VII
claims but also provides general guidance for purposes of amendment.
A complaint is to contain a "short and plain statement of the claim showing that the
pleader is entitled to relief[.]" Fed. R. Civ. P. 8(a). Especially where the pleader is pro se,
"pleadings should be liberally construed in the interests of justice." Johnson v. Reagan, 524
F.2d 1123, 1124 (9th Cir. 1975). Nonetheless, a complaint must set forth a set of facts that
serves to put defendant on notice as to the nature and basis of the claim(s). All allegations
of a claim are to be set forth in numbered paragraphs, each of which should be limited to a
single set of circumstances. Fed. R. Civ. P. 10(b). The format of Plaintiff's Amended
Complaint does not comply with the requirement of Federal Rule 8(a) that it contain a short
and plain statement of the claims showing that she is entitled to relief, or Federal Rule 10(a)
that each claim be set forth in numbered paragraphs each consisting of a single set of
circumstances. 	The 	Amended 	Complaint 	contains 	primarily 	conclusory 	statements
unsupported by specific facts. Plaintiff did not detail separate claims or state the legal basis
for relief.
Overall, Plaintiff's Amended Complaint is vague and does not offer sufficient detail
to Defendant to know what it is alleged to have done wrong. Plaintiff must identify the
conduct 	she 	considered 	discriminatory, 	the 	dates 	on 	which 	she 	complained 	of
discrimination and the content of those complaints, adverse employment actions to which
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she alleges she was subjected, and the dates on which those actions were imposed. For
purposes of establishing jurisdiction, Plaintiff must allege further information about the
EEOC process in which she participated. It would be helpful for Plaintiff to attach a copy
of her EEOC charge and her right to sue letter.
Plaintiff shall file her amended pleading on a form for employment discrimination
claims, 	available 	on 	the 	Court's 	website, 	here: 	https://www.uscourts.gov/forms-
rules/forms/complaint-employment-discrimination. Plaintiff must clearly designate on the
face of the document that it is a "Second Amended Complaint." If Plaintiff fails to use the
court-approved form, the Court may strike the Second Amended Complaint and dismiss
this action without further notice to Plaintiff. The Second Amended Complaint must be
retyped or rewritten in its entirety on the court-approved form and may not incorporate any
part of the prior complaints by reference. An amended complaint supersedes any prior
complaints. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v.
Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court
will treat the prior complaints as nonexistent. Ferdik, 963 F.2d at 1262. Plaintiff is
reminded of her obligation to comply with all rules of procedure and Court orders,
regardless of her pro se status. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). Failure
to do so may result in dismissal of the action. Fed. R. Civ. P. 41(b); Ferdik, 963 F.2d at
1260. If Plaintiff does not file an amended complaint within the deadline set by the District
Judge, this case will be subject to dismissal without further notice.
As Plaintiff was notified when she initiated this case, the Court has an advice clinic
for people that are representing themselves. (Doc. 5 at 7.) If Plaintiff chooses to seek advice
through 	the 	clinic, 	she 	should 	click 	the 	button 	that 	says, 	"Apply 	for 	help" 	at
https://www.stepuptojustice.org/.
RECOMMENDATION
Based on the foregoing, the Magistrate Judge recommends that the District Court
enter an order granting Defendants' Motion to Dismiss (Doc. 40). The Magistrate Judge
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recommends dismissal with prejudice of: claims premised on 18 U.S.C. § 2261A, A.R.S.
§ 23-907, the Civil Rights Act of 1991, and the National Labor Relations Act; and the
individual Defendants Jay Rising, Melissa Barlett, Melissa Citro, Shanna Burhans, and
Amy Bottari. The Magistrate Judge further recommends granting Plaintiff leave to amend,
in accord with the Court's directions, claims arising from Title VII against Defendant Vicar
Operating Inc.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file
written objections within fourteen days of being served with a copy of the Report and
Recommendation. A party may respond to the other party's objections within fourteen days.
No reply brief shall be filed on objections unless leave is granted by the District Court. If
objections are not timely filed, they may be deemed waived.
Dated this 19th day of November, 2025.
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