Amirault v. Billy et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Alan Amirault,
Plaintiff,
v.
Lorrie Billy, et al.,
Defendants.
No. CV-25-00555-TUC-RM
ORDER
On October 6, 2025, Plaintiff Alan Amirault initiated this action by filing a pro se
Complaint (Doc. 1) and an Application for Leave to Proceed in Forma Pauperis (Doc. 2).
On March 6, 2025, Plaintiff filed a Motion for Leave to File a First Amended Complaint.
(Doc. 6.) For the following reasons, the Court will grant the Application for Leave to
Proceed in Forma Pauperis, deny the Motion for Leave to File a First Amended Complaint,
and dismiss the Complaint with leave to amend.
I. Application for Leave to Proceed in Forma Pauperis
The Court may authorize the commencement and prosecution of any action without
prepayment of fees if a litigant submits an affidavit showing that he is unable to pay the
fees. 28 U.S.C. § 1915(a)(1). In his Application to Proceed in Forma Pauperis, Plaintiff
avers that he is unemployed, that his only income is from disability insurance benefits, that
his expenses nearly equal his income, that he has a total of $20.00 in his bank account, and
that he has no assets except his vehicle. (Doc. 2.) The Court finds that Plaintiff is unable to
pay the filing fees for this action and will grant Plaintiff’s Application for Leave to Proceed
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in Forma Pauperis.
II. Motion for Leave to File a First Amended Complaint
Plaintiff moves for leave to file a first amended complaint. (Doc. 6.) Pursuant to
Federal Rule of Civil Procedure 15(a)(1), a party may amend its pleading “once as a matter
of course” within 21 days after serving it or 21 days after service of a responsive pleading
or service of a motion under Rule 12(b), (e), or (f). As Plaintiff’s initial Complaint has not
yet been served, Plaintiff is entitled to amend as a matter of course.
However, Local Rule of Civil Procedure 15.1(b) requires a party filing an amended
pleading as a matter of course to file a separate notice with “a copy of the amended pleading
that indicates in what respect it differs from the pleading which it amends, by bracketing
or striking through the text that was deleted and underlining the text that was added.”
LRCiv 15.1(b). Here, Plaintiff’s Motion for Leave to File a First Amended Complaint fails
to comply with this requirement. Accordingly, the Court will deny the Motion.1 As
discussed below, the Court will grant Plaintiff leave to file an amended complaint that
corrects the deficiencies identified in this Order.
III. Statutory Screening of Complaints
The Prison Litigation Reform Act states that a district court “shall dismiss” an in
forma pauperis complaint if, at any time, the court determines that the action “is frivolous
or malicious” or that it “fails to state a claim on which relief may be granted.” 28 U.S.C. §
1915(e)(2). Section 1915(e) “applies to all in forma pauperis complaints, not just those
filed by prisoners.” Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc); see also
Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per curiam).
A pleading must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
required, but Rule 8 “demands more than an unadorned, the-defendant-unlawfully harmed-
me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[A] complaint must contain
1 Although the Court might, under certain circumstances, excuse a pro se plaintiff’s failure
to strictly comply with LRCiv 15.1(a)-(b), the Court finds that requiring strict compliance
here is appropriate given the length of Plaintiff’s original Complaint and because Plaintiff
may benefit from the guidance set forth in this Order in drafting an amended complaint.
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sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim
is plausible “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id.
The Court must “construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338,
342 (9th Cir. 2010). A complaint filed by a pro se litigant “must be held to less stringent
standards than formal pleadings drafted by lawyers.” Id. (internal quotation omitted).
Nevertheless, “a liberal interpretation of a civil rights complaint may not supply essential
elements of the claim that were not initially pled.” Ivey v. Bd. of Regents, 673 F.2d 266,
268 (9th Cir. 1982).
If the Court determines that a pleading could be cured by the allegation of other
facts, a pro se litigant is entitled to an opportunity to amend before dismissal of the action.
See Lopez, 203 F.3d at 1127-29.
IV. Plaintiff’s Complaint
In this action, Plaintiff brings claims arising from the termination of his involvement
as a volunteer at a thrift store in Benson, Arizona (“the thrift store”) operated by non-profit
corporation Disabled American Veterans, Department of Arizona, Inc. (Doc. 1 at 1-4.)
Plaintiff brings suit against Lorrie Billy2—“the de facto store manager and supervisor with
authority over scheduling and discipline”—as well as Disabled American Veterans,
Department of Arizona, Inc., and an individual named as “Commander John,” who Plaintiff
alleges “exercised operational authority (receipt reconciliation, discipline, removal).” (Id.
at 4.)
In his Complaint, Plaintiff alleges the following. Plaintiff’s involvement with the
thrift store began in May 2022, as part of a ten-hour community service requirement he
incurred as a result of a criminal offense. (Id. at 4, 8.) Plaintiff explains that he continued
2 Plaintiff spells this name “Lori Billy” in some parts of his Complaint. (Doc. 1 at 1, 4.)
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working at the thrift store long after he fulfilled his community service requirement, until
March 2025. (Id. at 1.) Plaintiff was “ultimately . . . promoted to shift lead,” and “routinely
opened/closed, handled the safe, managed the drawer, and ran entire shifts.” (Id. at 4.)
Although he was “called a volunteer” and was not paid, Plaintiff was permitted, per shift,
up to five free items of clothing valued at $1, and received a 50% discount on all same-day
purchases. (Id. at 5.)
At the thrift store, there “was no formal work schedule,” but volunteers knew what
days they were volunteering and could be “asked to cover for other volunteers.” (Id. at 4-
5.) The thrift store “provided no formal training program” and “direction was inconsistent”;
for example, volunteers completed tasks at the store in different ways depending on who
was there on a given day. (Id. at 5.) Volunteers “signed a one-page ‘training’ form” but
consistent guidance was not adhered to—“there [were] no checklists, no set of do’s and
don’ts.” (Id.) “[C]ash-handling practices” were “inconsistent and chaotic.” (Id. at 10.)
Plaintiff suffers from “PTSD, ADHD, bipolar disorder, enduring cognitive effects
following 14 ECT sessions . . . and physical pain issues.” (Id. at 3.) He “gradually disclosed
these conditions” to some of the other volunteers “in promotion of positive mental
health[.]” (Id. at 5.) During his last month of volunteering, Plaintiff informed Lorrie (Lori)
Billy and one other individual that he was undergoing medication changes and he “might
be a little more loopy than usual.” (Id. at 5.)
Although Plaintiff’s Complaint is not completely clear on this point, it appears that
near the end of his involvement with the thrift store, Plaintiff was accused of stealing
money from the thrift store’s cash register. (See id. at 5-7.) Plaintiff explains that the cash-
register had monetary discrepancies while “leaders experimented with settings,” denies
running any report that would have reset the day’s totals, and recounts two instances in
which he turned in money he inadvertently found in the store. (Id.)
Plaintiff alleges that the specific incident which led to the end of his involvement
with the thrift store occurred on March 15, 2025. (Id. at 7.) Plaintiff states that he “set his
wallet . . . in the back room . . . for a matter of minutes.” (Id.) A leader at the thrift store
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“promptly told Plaintiff to retrieve it, and he immediately did so.” (Id.) Later, Plaintiff
discovered $80 missing from his wallet. (Id.) Plaintiff reported the loss to the same leader
at the thrift store who had told him to retrieve the wallet, and “requested an internal
investigation and police involvement if appropriate.” (Id.) The following day, Plaintiff was
called to a meeting at the thrift store with Commander John, where he was informed that
thrift store management “didn’t want someone who leaves their wallet out [of] control”
and Plaintiff was told to “hit the road” after a “heated verbal back-and-forth.” (Id. at 8.)
After the wallet incident and subsequent meeting, Plaintiff heard secondhand that
Commander John said that “if Plaintiff retaliated in any way, [Commander John] would
call the police and make a criminal complaint implying that Plaintiff had been stealing[.]”
(Id. at 7-8.) Plaintiff explains that he is a “three-time felon” and it appears from the
Complaint that he believes he may have been targeted with accusations of stealing due to
his criminal history. (Id. at 8-9.)
Plaintiff brings eight counts arising from these events, including claims under the
Americans with Disabilities Act (“ADA”), the Fair Labor Standards Act (“FLSA”), the
Arizona Minimum Wage Act (“AMWA”), the Arizona Employment Protection Act
(“AEPA”), and various common law causes of action. (Doc. 1.)
V. Discussion
a. Americans with Disabilities Act Claims3
In Counts I-V of the Complaint, Plaintiff brings three employment discrimination
claims under Title I, a discrimination in public accommodations claim under Title III, and
a retaliation claim under Title V.4 (Doc. 1 at 9-13.)
3 An essential element of any ADA claim is that the plaintiff be disabled within the meaning
of the ADA. Equal Emp. Opportunity Comm’n v. BNSF Ry. Co., 902 F.3d 916, 922-23 (9th
Cir. 2018), as amended (Sept. 12, 2018). This means having an impairment that
“substantially limits one or more major life activities.” 42 U.S.C. § 12102(1). “Major life
activities” include thinking and concentrating. 42 U.S.C. § 12102(2)(A). Since Plaintiff
alleges that his PTSD, ADHD, and bipolar disorder substantially limit his thinking and
concentrating abilities, the Court finds Plaintiff has adequately alleged that he is disabled
within the meaning of the ADA.
4 Although each of Plaintiff’s ADA claims is brought against Disabled American Veterans,
Department of Arizona, Inc.—a cognizable defendant under the ADA—Plaintiff also
alleges that Lori (Lorrie) Billy and Commander John are individually liable for each of his
ADA claims. There is no individual liability, however, under Title I of the ADA. Walsh v.
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i. Standing
As an initial matter, it appears that Plaintiff lacks standing to pursue the Title III and
Title V claims he has asserted under the ADA. While damages may be obtained for
employment discrimination claims brought under Title I, only injunctive relief is available
for violations of Title III and retaliation claims under Title V. Wander v. Kaus, 304 F.3d
856, 858 (9th Cir. 2002) (“[O]nly injunctive relief is available for violations of Title III.”);
Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1270 (9th Cir. 2009) (“[D]amages are
not available for ADA retaliation claims . . . such claims are limited to . . . equitable
relief.”).
A plaintiff must demonstrate constitutional standing separately for each form of
relief requested. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S.
167, 185 (2000). Standing to seek injunctive relief depends on whether the movant is likely
to suffer future injury from the challenged action. City of Los Angeles v. Lyons, 461 U.S.
95, 105 (1983). The asserted future injury must be “actual and imminent, not conjectural
or hypothetical.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). Past wrongs
alone are insufficient to confer standing to seek injunctive relief. Lyons, 461 U.S. at 102.
Here, Plaintiff does not assert the existence of any future injury arising from the
actions of any defendant.5 Since only injunctive relief may be obtained for Plaintiff’s public
accommodations claim under Title III and retaliation claim under Title V—but Plaintiff
has alleged no facts that would confer standing to seek injunctive relief—these claims fail.
In addition, the Complaint fails to plead the elements of these claims, as addressed in
Section VI(a)(iii) and (a)(iv), infra.
ii. Title I Claims
Plaintiff brings three counts arising under Title I of the ADA, each different theories
of employment discrimination prohibited by the ADA. In Count III, he alleges that the
Nevada Dep’t of Hum. Res., 471 F.3d 1033, 1038 (9th Cir. 2006). Furthermore, under Title
III of the ADA, there is only individual liability where an individual can be considered an
“operator” of a place of public accommodation. Ewers v. Columbia Med. Clinic, No. 3:23-
CV-0009-IM, 2024 WL 1241536 at *3 (D. Or. Mar. 22, 2024).
5 Plaintiff states in the Complaint that he seeks “[a] preliminary and permanent injunction,”
(Doc. 1 at 15) but as discussed above, he fails to allege any future injury.
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termination of his involvement as a volunteer at the thrift store constituted employment
discrimination. (Doc. 1 at 11-12.) In Count IV, he alleges that the thrift store’s failure to
engage in the “interactive process” proscribed by the ADA also constituted employment
discrimination. (Id. at 11-12.) Finally, in Count V, he asserts that thrift store management
“regarded Plaintiff as having physical or mental impairments that substantially limited one
or more major life activities” in violation of the ADA.6 (Id. at 12-13.)
1. Exhaustion of Administrative Remedies
“It is well-established that Title I of the ADA requires parties to file a charge with
the Equal Employment Opportunity Commission (“EEOC”) prior to filing a complaint in
federal court.” Alexander Plank v. SAG-AFTRA, No. 2:25-CV-07523-AB, 2025 WL
4036442 (C.D. Cal. Dec. 18, 2025) (citing Zimmerman v. Oregon Dep’t of Just., 170 F.3d
1169 (9th Cir. 1999)). Where a plaintiff’s failure to exhaust applicable administrative
remedies is clear on the face of the complaint, dismissal of the complaint is not
inappropriate. Fox v. MHM Health Pros. LLC, No. CV-23-00190-PHX-DWL, 2024 WL
4364133 at *15 (D. Ariz. Sept. 30, 2024) (citing McIntyre v. Eugene Sch. Dist. 4J, 976
F.3d 902, 909 n.6 (9th Cir. 2020)). Here, Plaintiff does not assert anywhere in the
Complaint that he filed a charge with the EEOC prior to bringing his Title I claims. (See
Doc. 1.) Accordingly, dismissal for failure to exhaust administrative remedies is warranted.
In addition, the Complaint fails to adequately plead the elements of Plaintiff’s Title I
claims, as explained below.
2. Employee Status
Since Title I of the ADA concerns employment discrimination, an individual
bringing claims under this title must qualify as an “employee” of the defendant.7 See, e.g.,
Brown v. Riverside Elementary Sch. Dist. No. 2, No. CV-21-01569-PHX-DJH, 2023 WL
6 Merely being “regarded as” having a disability is not a cause of action under the ADA.
See 42 U.S.C. § 12102. Rather, the ADA includes in the definition of “disability” an
individual who is “regarded as having . . . an impairment.” 42 U.S.C. § 12102(1)(C). As
such, Count V will be dismissed.
7 Title I also provides a cause of action for job applicants discriminated against due to
disability, but Plaintiff does not allege he was a job applicant, and that analysis is therefore
not relevant. See 42 U.S.C. § 12112.
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5095066 at *3 (D. Ariz. Aug. 9, 2023). The ADA defines “employee” as an “individual
employed by an employer.” 42 U.S.C. § 12111(4). Recognizing that this is “a mere nominal
definition that is completely circular and explains nothing,” the Supreme Court has
instructed that the “common-law element of control” in the master-servant relationship “is
the principal guidepost that should be followed” in ADA cases. Clackamas
Gastroenterology Assocs., P. C. v. Wells, 538 U.S. 440, 444-48 (2003) (internal citations
and quotation marks omitted).
Six factors are relevant to whether a non-traditional worker, such as a volunteer,
qualifies as an employee under the ADA. Fichman v. Media Ctr., 512 F.3d 1157, 1160 (9th
Cir. 2008) (citing Clackamas, 538 U.S. at 449-50). These include: whether the organization
can hire or fire the individual or set the rules and regulations of the individual’s work;
whether and, if so, to what extent the organization supervises the individual’s work;
whether the individual reports to someone higher in the organization; whether and, if so,
to what extent the individual is able to influence the organization; whether the parties
intended that the individual be an employee, as expressed in written agreements or
contracts; and whether the individual shares in the profits, losses, and liabilities of the
organization. Id.
Here, the facts alleged by Plaintiff do not demonstrate that Plaintiff was an
employee of the thrift store for purposes of the ADA. Plaintiff was never formally hired;
received compensation only in the form of discounts at the thrift store; and did not share in
its profits, losses, or liabilities. (See Doc. 1.) Moreover, Plaintiff’s own allegations
undermine the idea that Plaintiff’s work was much supervised or that rules and regulations
applied to his work. Plaintiff emphasizes that there was “was no formal work schedule,”
(id. at 4-5), “no formal training program” (id. at 5), “direction was inconsistent” (id.),
volunteers “signed a one-page ‘training’ form,” but “there [were] no checklists, no set of
do’s and don’ts,” (id.) and “cash-handling practices” were “inconsistent and chaotic” (id.
at 10). Plaintiff did report to higher-ups presumably employed by the non-profit operating
the thrift store, but this fact “would be present in any purely volunteer labor relationship.”
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Solander v. S. Ponderosa Stables Inc., No. CV-14-02081-PHX-DGC, 2015 WL 4139045
at *4 (D. Ariz. July 9, 2015). Since Plaintiff’s allegations do not show that he was an
employee of the thrift store, dismissal of Counts III and IV is appropriate.
3. Termination of Employment Claim
Even if the Complaint did sufficiently demonstrate that Plaintiff had employee
status at the thrift store, the Complaint also fails to adequately allege the elements of
Plaintiff’s employment termination claim in Count III. “In order to prevail on an
employment termination claim under the ADA, a plaintiff must establish: (1) that he is a
disabled person within the meaning of the ADA; (2) that he is qualified, that is, with or
without reasonable accommodation (which he must describe), he is able to perform the
essential functions of the job; and (3) that the employer terminated him because of his
disability.” Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996). “[A]n ADA
discrimination plaintiff . . . must show that the adverse employment action would not have
occurred but for the disability.” Murray v. Mayo Clinic, 934 F.3d 1101, 1105 (9th Cir.
2019) (emphasis added).
Here, Plaintiff alleges no facts showing that his disabilities played a role in the
decision to terminate his involvement as a volunteer at the thrift store, much less that he
would not have been told to leave but for his disabilities. (See Doc. 1.) Instead, Plaintiff
alleges that the March 15, 2025 incident regarding his wallet being left on the back table
caused management at the thrift store to become upset with him, ultimately leading to the
meeting in which he was told to “hit the road.” (Id. at 7-8.) It also appears that
accusations—whether founded or not—that Plaintiff was stealing from the cash register
were a contributing factor. (Id. at 7-8.) Plaintiff’s failure to allege facts plausibly showing
that he would not have been asked to leave the thrift store but for his disabilities constitutes
another basis upon which Count III must be dismissed.
4. Failure to Engage in Interactive Process
In Count IV, Plaintiff alleges that the thrift store’s failure to engage in the
“interactive process” prescribed by the ADA also constituted employment discrimination.
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(Doc. 1 at 11-12.) The ADA treats the failure to provide a reasonable accommodation as
an act of discrimination if the employee is a ‘qualified individual,’ the employer receives
adequate notice, and a reasonable accommodation is available that would not place an
undue hardship on the operation of the employer’s business.” Snapp v. United
Transportation Union, 889 F.3d 1088, 1095 (9th Cir. 2018) (citing 42 U.S.C. §
12112(b)(5)(A)). “[N]otifying an employer of a need for an accommodation triggers a duty
to engage in an interactive process through which the employer and employee can come to
understand the employee’s abilities and limitations, the employer’s needs for various
positions, and a possible middle ground for accommodating the employee.” Id.
Here, Plaintiff alleges that his statement to thrift store management that he “might
be a little more loopy than usual” due to prescription medication changes constituted a
request for accommodation under the ADA, and that the thrift store was therefore required
to engage in the applicable interactive process. (Doc. 1 at 11-12.) Even though a request
for accommodation need not include specific language or even refer to the ADA,8 it is not
possible to interpret Plaintiff’s statement as a qualifying request for accommodation.
Merely stating that prescription medication changes might render Plaintiff “a little more
loopy than usual” is not a request of any sort, and Plaintiff does not allege that the
medication changes caused him to have problems completing his typical work. Plaintiff’s
failure to allege that he made a request for accommodation under the ADA constitutes
another basis upon which Count IV must be dismissed.
iii. Title III Claim
In Count II, Plaintiff asserts a claim for discrimination in public accommodations in
violation of Title III of the ADA. (Doc. 1 at 10.) As a “general rule,” Title III mandates
that “[n]o individual shall be discriminated against on the basis of disability in the full and
equal enjoyment of the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by any person who owns, leases
(or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). The
8 Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th Cir. 2000), vacated on other grounds
sub nom. US Airways, Inc. v. Barnett, 535 U.S. 391 (2002).
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statute specifies that “discrimination includes the imposition or application of eligibility
criteria that screen out or tend to screen out an individual with a disability.” 42 U.S.C. §
12182(b)(2)(A)(i). The Ninth Circuit has explained that to “prevail on a Title III
discrimination claim, the plaintiff must show that (1) [he] is disabled within the meaning
of the ADA;9 (2) the defendant is a private entity that owns, leases, or operates a place of
public accommodation;10 and (3) the plaintiff was denied public accommodations by the
defendant because of [his] disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th
Cir. 2007).
Plaintiff alleges that “Defendants’ policies and practices—including the lack of
consistent cash-handling protocols, use of a donation can for a change bank, and the failure
to provide adequate internal security—constitute eligibility criteria and policies that
discriminate against and screen out individuals with disabilities.” (Doc. 1 at 10.) The
practices described by Plaintiff, however, are not “eligibility criteria”—clearly, Plaintiff
was eligible to volunteer because he held the role for “nearly three years.” (Id. at 1.) Rather
than specific factual allegations, Plaintiff offers only conclusory assertions that he was
discriminated against. (Id. at 10-11.) Moreover, some of Plaintiff’s conclusions are difficult
to reconcile; for example, he asserts in Count II that the thrift store should be liable for the
“failure to reasonably modify [its] policies and procedures,” but also states that he is “able
to perform the essential functions of a shift lead with or without reasonable
accommodation.” (Id. at 11.) Plaintiff has failed to show that he was denied public
accommodations because of his disability, and this is another basis upon which Count II
must be dismissed.
iv. Title V Claim
In Count I, Plaintiff brings a claim for retaliation and interference under Title V of
the ADA. Title V provides that “[n]o person shall discriminate against any individual
9 As discussed above, the Court has already concluded that Plaintiff has sufficiently shown
that he is disabled within the meaning of the ADA.
10 A “sales establishment” that “affect[s] commerce” is a private entity to be considered a
public accommodation for purposes of Title III, covering the thrift store that is the subject
of this action. See 42 U.S.C. § 12181(7)(E).
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because such individual has opposed any act or practice made unlawful by this chapter”
and that “[i]t shall be unlawful to coerce, intimidate, threaten, or interfere with any
individual in the exercise or enjoyment of . . . any right granted or protected by this
chapter.” 42 U.S.C. § 12203(a) (“Retaliation”), § 12203(b) (“Interference, coercion,
intimidation”). Plaintiff asserts that he “engaged in protected activity by reporting a theft
and requesting a proper investigation,” and that “Defendants’ subsequent actions, including
summary termination and threats of criminal prosecution, constitute unlawful retaliation
and interference with this protected activity.” (Doc. 1 at 10.)
To state a claim for retaliation under the ADA, a plaintiff must allege that “(a) that
he or she was engaged in protected activity, (b) that he or she suffered an adverse action,
and (c) that there was a causal link between the two.” T.B. ex rel. Brenneise v. San Diego
Unified Sch. Dist., 806 F.3d 451, 473 (9th Cir. 2015). The standard for “causal link” is but-
for causation. Id. (quoting Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013)).
“Protected activity” means pursuing one’s rights under the ADA. Pardi v. Kaiser Found.
Hosps., 389 F.3d 840, 850 (9th Cir. 2004). Here, Plaintiff does not allege that he engaged
in protected activity, because reporting a theft and requesting a police investigation is not
the pursuit of rights under the ADA. Plaintiff also has not alleged but-for causation,
because it is unclear based on the Complaint’s allegations what actually caused Plaintiff to
be asked to leave the thrift store—accusations of stealing, requesting a police report, or
leaving his wallet on the back table.
Turning to Plaintiff’s claim of interference, under the ADA “[i]nterference should
be given a ‘broad scope’ such that it ‘reach[es] all practices which have the effect of
interfering with the exercise of rights’ but “the ADA’s interference provision does not bar
any action whatsoever that in any way hinders a member of a protected class.” C.R. Dep’t
v. Grimmway Enters., Inc., 800 F. Supp. 3d 1084, 1118 (E.D. Cal. 2025) (quoting Brown
v. City of Tucson, 336 F.3d 1181 (9th Cir. 2003)). Here—as discussed above—Plaintiff
does not allege that he attempted to exercise any rights under the ADA, and therefore has
not successfully pled either interference or retaliation. This constitutes another basis upon
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which Count I must be dismissed.
b. FLSA and Arizona Minimum Wage Act Claims
In Count VI, Plaintiff asserts that the thrift store violated both the Fair Labor
Standards Act (“FLSA”) and the Arizona Minimum Wage Act (“AMWA”) by failing to
“pay him the federal minimum wage of $7.25 per hour, or the Arizona Minimum Wage of
$14.35 per hour[.]” (Doc. 1 at 13.) Both the FLSA and the AMWA require employers to
pay certain minimum wages to employees. See 29 U.S.C. §§ 206, 207; A.R.S. § 23–363(A).
In order to state a claim for failure to pay minimum wage in violation of either the
FLSA or the AMWA, a plaintiff must show that: (1) he was an employee under the meaning
of the statute; (2) he was covered under the statute; and (3) his employer failed to pay him
the applicable minimum wage. Smith v. Nov. Bar N Grill LLC, 441 F. Supp. 3d 830, 835
(D. Ariz. 2020) (explaining elements of FLSA minimum wage claim); Alexander v. Golden
Margarita LLC, No. CV-22-00781-PHX-DWL, 2025 WL 3647983 at *12 (D. Ariz. Dec.
16, 2025) (explaining elements of AMWA minimum wage claim). The AMWA expressly
adopts the standards of the FLSA to determine the first element—whether an individual is
an employee. A.R.S. § 23–362(D); Martinez v. Ehrenberg Fire Dist., No. CV-14-00299-
PHX-DGC, 2015 WL 3604191 at *2 (D. Ariz. June 8, 2015).
The FLSA broadly defines “employee” as “any individual employed by an
employer.” 29 U.S.C. § 203(e)(1). “Employ” means “to suffer or permit to work.” 29
U.S.C. § 203(b). The Supreme Court has held that the broad definition of “employ”
established in the FLSA “expand[ed] the scope of employment relationships beyond the
common-law understanding.” U.S. Equal Emp. Opportunity Comm’n v. Glob. Horizons,
Inc., 915 F.3d 631, 639 (9th Cir. 2019) (citing Nationwide Mut. Ins. Co. v. Darden, 503
U.S. 318 (1992)). As such, the Supreme Court has instructed that in determining employee
status under the FLSA, it is appropriate to apply an “economic realities test,” which
provides that “employees are those who as a matter of economic reality are dependent upon
the business to which they render service.” Hollis v. R&R Restaurants, Inc, 159 F.4th 677,
686 (9th Cir. 2025) (internal citations omitted).
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For example, a worker who receives no wages but who is provided “food, shelter,
clothing, transportation and medical benefits” by a business is rendered as a matter of
economic reality dependent on that business, and should be considered an employee under
the FLSA. Tony & Susan Alamo Found. v. Sec’y of Lab., 471 U.S. 290, 293-301 (1985). In
contrast, one who receives only a nominal benefit in return for volunteer work is not
economically dependent upon the business he performs work for. Adams v. Palm Beach
Cnty., 94 F.4th 1134, 1339 (11th Cir. 2024). In Adams, the Eleventh Circuit held that
volunteers at a golf course who received only discounts on rounds of golf and tips from
customers were not economically dependent upon the golf course, and therefore were not
employees under the FLSA. Id.
Here, Plaintiff’s arrangement with the thrift store is analogous to Adams; he alleges
that he received “up to five items of clothing (valued at $1 each)” and “a 50% discount on
all same-day purchases” in return for the work he performed, but these facts do not
demonstrate that he was economically dependent on the thrift store. Unlike the workers in
Tony & Susan Alamo Foundation, who relied on their employer for basic necessities,
Plaintiff does not show that his arrangement with the thrift store “was . . . anything more
than a perk for [his] volunteer services.” Adams, 94 F.4th at 1139. Therefore, Plaintiff has
not adequately pled that he was an employee under the FLSA, the first essential element
of a claim under either the FLSA or the AMWA.
The second element of a claim under either the FLSA or the AMWA is that the
alleged employee be covered under the terms of the statute. Smith, 441 F. Supp. 3d 830,
835; Alexander, 2025 WL 3647983 at *12. Unlike the analysis of whether an employment
relationship exists, coverage under the FLSA and the AMWA are two distinct but
intertwined inquiries. See Alexander, 2025 WL 3647983. Under the FLSA, an alleged
employee is covered by the statue if he can establish either “individual” or “enterprise”
coverage. Chao v. A-One Med. Servs., Inc., 346 F.3d 908, 915 (9th Cir. 2003). Individual
coverage exists if the alleged employee is engaged in interstate commerce. 29 U.S.C. §
206(a)-(b). Enterprise coverage exists if the alleged employer has an annual gross revenue
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of $500,000 or greater. 29 U.S.C. § 203(s). Here, Plaintiff has alleged no facts showing
that he was engaged in interstate commerce, or that the thrift store had an annual gross
revenue of more than $500,000. (See Doc. 1.) As such, Plaintiff has failed to allege that he
is covered under the terms of the FLSA, the second essential element of his FLSA claim.
Under the AMWA, an employee is not covered if he works for a business with less
than $500,000 in gross annual revenue and that business “is exempt from having to pay a
minimum wage under [the FLSA].” A.R.S. § 23-362(B)-(C). As discussed above, Plaintiff
has not shown that the thrift store was required to pay a minimum wage under the FLSA,
and he has not alleged that the thrift store had more than $500,000 in gross annual revenue.
(See Doc. 1.) As such, Plaintiff has also failed to demonstrate that he is covered under the
terms of the AMWA.
In sum, Plaintiff has failed to adequately plead both the first and second elements
of his claims for violation of the FLSA and AMWA due to failure to pay a minimum wage,
and Count VI must be dismissed.
c. Claim Under the Arizona Employment Protection Act (“Whistleblower
Retaliation”)
In Count VII, Plaintiff alleges a violation of A.R.S. § 23-1501(A)(3)(c)(ii), a
provision of the Arizona Employment Protection Act (“AEPA”). See A.R.S. § 23-1501 et.
seq. The AEPA enumerates the circumstances in which an employee has a claim against
an employer for termination of employment in Arizona. Id. Under the provision cited by
Plaintiff, an employee has such a claim where his employer “has terminated the
employment relationship . . . in retaliation for . . . [t]he disclosure by the employee . . . that
the employee has information or a reasonable belief that the employer, or an employee of
the employer, has violated, is violating or will violate . . . the statutes of this state.” A.R.S.
§ 23-1501(A)(3)(c)(ii). Plaintiff asserts that he was terminated in retaliation for reporting
a potential theft after he discovered $80 missing from his wallet while at the thrift store.
(Doc. 1 at 7.)
First, the plain text of AEPA is clear that the statute applies only to “employees”; a
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plaintiff must have been in an employment relationship in order to state a claim for a
violation of the statute. See A.R.S. § 23-1501. The statute does not provide a definition of
“employee.” See id. However, where a term has a “well-known and definite meaning at
common law,” Arizona courts presume that “the Legislature used the word as it was
understood at common law, and . . . will construe it accordingly absent some other special
meaning apparent from the text.” Allen v. Sanders, 346 P.3d 30, 32 (Ct. App. 2015). Under
Arizona common law, the “fundamental criterion” in determining whether an employment
relationship exists is the “extent of control the principal exercises or may exercise over the
agent.” Santiago v. Phoenix Newspapers, Inc., 794 P.2d 138, 141 (1990). The Court has
already examined the “common-law element of control” to determine whether Plaintiff
qualifies as an employee for purposes of his ADA claims, and concluded that under this
test, Plaintiff’s allegations do not show that he was an employee of the thrift store. See
Section VI(a)(ii)(2), supra.
Moreover, in order to state a claim for relief under A.R.S. § 23-1501(A)(3)(c)(ii), a
complaint must identify which Arizona statute the alleged employee believed to be
violated. Painter v. Katerra Inc., No. CV-21-00308-PHX-SRB, 2021 WL 2589736 at *4
(D. Ariz. Apr. 5, 2021) (“Even assuming all the factual allegations as true, Plaintiff's bare
legal conclusion that Defendant was going to violate some unreferenced statute or
constitutional provision . . . is insufficient to survive dismissal.”). Here, Plaintiff states only
that a theft occurred at the thrift store, and does not identify which Arizona statute he
believes was violated. (See Doc. 1.)
Finally, a prima facie case of retaliation under A.R.S. § 23-1501(A)(3)(c)(ii)
requires that there be a “causal link” between the alleged employee’s decision to disclose
his belief that a law had been violated and any subsequent adverse action against him.
Levine v. TERROS, Inc., No. CV08-1458-PHX-MHM, 2010 WL 864498 at *10 (D. Ariz.
Mar. 9, 2010). Here, as previously discussed, Plaintiff’s Complaint is unclear regarding
what actually caused Plaintiff to be asked to leave the thrift store; the Complaint variously
asserts, in contradictory fashion, that accusations that Plaintiff was stealing, Plaintiff’s
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disclosure of a theft, and Plaintiff’s decision to leave his wallet on the back table were the
cause. (See Doc. 1.)
In light of the foregoing, the Court concludes that Plaintiff has failed to state a claim
for relief under A.R.S. § 23-1501(A)(3)(c)(ii).
d. Arizona Tort Claims
In Count VIII, Plaintiff asserts another claim for wrongful termination, and adds
“defamation; false light; [and] intentional infliction of emotional distress.” (Doc. 1 at 14)
(capitalization omitted).) Plaintiff’s allegations in this count are exactly the “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements” that
“do not suffice” under Rule 8. See Ashcroft, 556 U.S. at 678. The entirety of Count VIII
reads as follows.
Defendants’ termination of Plaintiff in retaliation for his
protected activity (reporting a theft and requesting an
investigation) violates the public policy of Arizona and
constitutes a common law tort of wrongful termination.
Additionally, Defendant “Commander John’s” accusation that
Plaintiff was “stealing” or “counting money” by running
interim reports, made in the presence of Irene Baq, constitutes
defamation. These statements were false, communicated to a
third party, and caused harm to Plaintiff’s reputation.
Defendants’ conduct also constitutes false light invasion of
privacy by placing Plaintiff in a false, negative light before his
peers and others, painting him as a thief. This conduct was
highly offensive to a reasonable person and done with malice.
Finally, the Defendants’ threats of criminal prosecution on
fabricated charges, the manner of his termination, and the
deliberate creation of a hostile and retaliatory environment
were so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be
regarded as atrocious and utterly intolerable in a civilized
community, thereby constituting intentional infliction of
emotional distress. The malicious and intentional nature of the
threats and the deliberate creation of a hostile work
environment elevates this behavior beyond a simple workplace
dispute.
(Doc. 1 at 14-15.)
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None of the causes of action cited by Plaintiff in this Count contain sufficient factual
matter to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. It
is mostly unclear who did what, and when, and what harm Plaintiff suffered. Since Rule 8
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation,”
Ashcroft, 556 U.S. at 678, Count VIII will be dismissed.
VI. Warnings
a. Address Changes
If Plaintiff’s address changes, Plaintiff must file and serve a notice of a change of
address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff
must not include a motion for other relief with a notice of change of address. Failure to
comply may result in dismissal of this action.
b. Possible Dismissal
If Plaintiff fails to timely file an amended complaint in compliance with this Order,
this action will be dismissed with prejudice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-
61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any
order of the Court).
Accordingly,
IT IS ORDERED that Plaintiff’s Application to Proceed In Forma Pauperis (Doc.
2) is granted.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File a First
Amended Complaint (Doc. 6) is denied without prejudice.
. . . .
. . . .
. . . .
. . . .
. . . .
. . . .
. . . .
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IT IS FURTHER ORDERED that Plaintiff’s Complaint (Doc. 1) is dismissed
with leave to amend. Within thirty (30) days, Plaintiff may file a first amended complaint
that cures the deficiencies addressed in this Order. If Plaintiff fails to file an amended
complaint within thirty days, the Clerk of Court must, without further notice, enter a
judgment of dismissal of this action with prejudice.
Dated this 26th day of March, 2026.
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