Escalante v. Vicar Operating Incorporated et al

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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, and Amy Bottari filed a
Motion to Dismiss Plaintiff Raquel Escalante's Second Amended Complaint pursuant to
Federal Rule of Civil Procedure 8 and 12(b)(6).1 (Doc. 51.) Plaintiff responded, and
Defendants replied. (Docs. 53, 54.) 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,
grant Defendants’ Motion to Dismiss and dismiss the Second Amended Complaint with
prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff initiated this action in June 2025 (Doc. 1) and filed an Amended Complaint
prior to the appearance of any Defendants (Doc. 18). Pursuant to a motion by Defendants,
the 	Court 	dismissed 	the 	Amended 	Complaint, 	including 	dismissing 	all 	individual
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).
Case 4:25-cv-00339-RCC-LCK Document 55 Filed 06/12/26 Page 1 of 15

- 2 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
defendants with prejudice, and granted leave to amend to allege a Title VII claim against
Defendant Vicar Operating, Inc. (Docs. 44, 46, 48.)
In the Second Amended Complaint, Plaintiff named Vicar Operating Incorporated,
Jay Rising (HR partner), and Amy Bottari (Supervisor) as Defendants. (Doc. 50 at 1–2.)
Plaintiff alleged the following facts in the Second Amended Complaint. Plaintiff, a Native
American woman, was hired to work at VCA Valley Pet Resort on January 24, 2020. (Doc.
50-1 at 1.) On May 2, 2022, Plaintiff notified her supervisor Defendant Bottari of a family
member’s funeral and her upcoming absence. She was unable to cover her shift but
followed the procedure for a callout. Upon return, she was notified that her absence was
being treated as a no call no show, despite giving Bottari and other employees advance
notice and following procedures. (Id.) Plaintiff alleged that, on May 5, 2022, she emailed
Senior Regional HR Partner Melissa Barlett to file a formal complaint against Bottari. She
notified Barlett about Bottari’s handling of her callout and other concerns about how
Bottari treated her. (Id.) Plaintiff provided examples of times she felt targeted, treated
unfairly, and/or micromanaged by Bottari. In June, in a meeting with the regional
operations director (Melissa Gonzales) and the VCA Pet Resort manager (Melissa Citro),
Plaintiff felt targeted and misunderstood. (Id. at 2.)
Bottari continued to harass Plaintiff on a weekly basis through sticky notes, emails,
and in meetings. The company placed an onsite HR partner at VCA, and Plaintiff told her
that she was skeptical she could ever be promoted due to her issues with Bottari and Citro.
(Id. at 3.) The following year, Defendant Rising took over as the onsite HR partner. Plaintiff
told Rising that she had learned to cope with Bottari treating her unfairly by minimizing
contact, but that harassment had impacted her schedule and pay and led to disciplinary
write-ups. (Id. at 4.) On May 5, 2022, Plaintiff alleged that she was shocked to receive a
written warning regarding her attendance. Plaintiff alleged that each of the five cited
occurrences had a justification and/or had been approved. She believes she was treated
differently than other white employees that had been tardy to work. (Id.)
Case 4:25-cv-00339-RCC-LCK Document 55 Filed 06/12/26 Page 2 of 15

- 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
On June 23, Plaintiff emailed Bottari because she was scheduled to work on a
Sunday, something she had never done; Bottari indicated that no one had a set schedule.
(Id.) On June 29, 2023, Plaintiff reported by email that a member of management, Shanna
Burhans, ignored Plaintiff's presence twice, humiliating her in front of coworkers. Citro
defended Burhans’s actions. Plaintiff reported that she was having further issues with
Bottari, including emails, schedule changes, and constant harassment. Plaintiff came to
believe she was being discriminated against in the workplace based on her race. (Id. at 5.)
Plaintiff alleged that Bottari held her to a demanding standard but did not do the same for
white employees even though some had a poor work ethic, behaved unacceptably, or
worked a more flexible schedule. (Id. at 6–7.)
In August 2023, Plaintiff learned that she would not be compensated for working a
“stacked shift,” something employees had been compensated for in the past. (Id. at 7.) On
February 28, 2024, Plaintiff was given a written warning for attendance due to “excessive
tardiness.” She alleged that only one of the eleven tardies was due to her being more than
15 minutes late and, on that date, she followed the policy of calling to provide notice. She
found the write up distressing, and she did not believe her lateness created a hardship. (Id.
at 8.) On April 10, 2024, she was given a final written warning. Plaintiff did not believe
her job performance had declined substantially, but she alleged that Bottari was obsessive
about details and micromanaged her and others. (Id. at 8–9.)
At a July 17, 2024, meeting with Rising and Bottari, Plaintiff was interrogated and
shown photos and videos of her at work, confirming her suspicion that she had been under
surveillance. Plaintiff concluded that the company was searching for a reason to terminate
her. Plaintiff alleged that Rising and Bottari intentionally had discriminated against her
because she was a Native American woman and retaliated against her because she filed an
HR complaint. Based on feeling unsafe in the workplace, she left her job. (Id. at 9–10.)
Plaintiff alleges the discrimination was enacted through a failure to promote her, unequal
terms and conditions of her employment, and retaliation. (Doc. 50 at 4.) She asserts claims
under Title VII, A.R.S. § 23-425, and A.R.S. § 13-2923. (Id. at 3; Doc. 50-1 at 10.)
Case 4:25-cv-00339-RCC-LCK Document 55 Filed 06/12/26 Page 3 of 15

- 4 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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
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)).
Case 4:25-cv-00339-RCC-LCK Document 55 Filed 06/12/26 Page 4 of 15

- 5 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DISCUSSION
In 	their 	motion, 	Defendants 	seek 	dismissal 	of 	Plaintiff's 	Second 	Amended
Complaint in entirety and with prejudice. Defendants argue that the individual defendants
must be dismissed because the Court previously dismissed them with prejudice without
leave to amend. Defendants further contend that all claims should be dismissed for failure
to state a claim. Below, the Court examines each cause of action separately.
A.R.S. § 13-2923
This statute criminalizes certain behavior classified as stalking under state law. As
the Court pointed out when Plaintiff asserted a claim under the federal stalking statute, in
general, "a private party may not enforce a criminal statute through a civil action" (Doc.
44 at 4). See Smith v. Am. Red Cross, No. CV-20-00210-TUC-DCB-LAB, 2020 WL
4904240, at *2 (D. Ariz. Aug. 20, 2020). The criminal statute cited by Plaintiff does not
provide a basis for a private right of action through civil litigation. Cf. Taylor v. Alaska
Airlines Inc., No. CV-24-03653-PHX-DMF, 2025 WL 3484753, at *10 (D. Ariz. Dec. 4,
2025) (dismissing a similar claim under the state criminal harassment statute, A.R.S. § 13-
2921, because it did not create a private right of action). In her motion response, Plaintiff
offered no objection specific to Defendants’ argument for dismissal of this claim. (Doc.
53.) Plaintiff's claim based on A.R.S. § 13-2923 must be dismissed. Because there are no
facts Plaintiff could allege to support a private right of action under this statute, this claim
should be dismissed with prejudice.
A.R.S. § 23-425
This state statute prohibits an employer from retaliating against an employee that
reported her belief that the employer failed to comply with occupational safety and health
standards that threaten harm. A.R.S. §§ 23-408(K), 23-425. First, Plaintiff has not alleged
that she submitted a complaint based on safety standards; therefore, this claim should be
dismissed. See Gaston v. Malone, No. CV-13-00103-PHX-NVW, 2013 WL 1748346, at
*2 (D. Ariz. Apr. 23, 2013) (dismissing a claim based on A.R.S. § 23-425 because the
employee had made no complaint as to safety and health standards). Second, the remedy
Case 4:25-cv-00339-RCC-LCK Document 55 Filed 06/12/26 Page 5 of 15

- 6 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
for alleged retaliation is for the employee to file a complaint with the Industrial
Commission of Arizona, which may bring an action in a state superior court on behalf of
the employee. See A.R.S. § 23-425(B). There is no statutory right for the employee to bring
a direct action in federal court or any other court. See Painter v. Katerra Inc., No. CV-21-
00308-PHX-SRB, 2021 WL 2589736, at *4 (D. Ariz. Apr. 5, 2021) (noting the exclusive
remedy for a violation of A.R.S. § 23-425 is to file a complaint with the Arizona Industrial
Commission within 30 days of the alleged violation). In her motion response, Plaintiff
offered no objection specific to Defendants’ argument for dismissal of this claim. (Doc.
53.) For the reasons set forth above, this claim should be dismissed with prejudice.
Title VII
Plaintiff alleged she was discriminated against based on her race, Native American,
and that she was subjected to retaliation and a hostile work environment in violation of
Title VII.
Discrimination Based on Race
Plaintiff alleged that her employer discriminated against her due to her race. 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 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)). Plaintiff has not alleged in
her Second Amended Complaint, or response to the motion to dismiss, any direct or
circumstantial evidence of discriminatory intent by anyone in her former workplace.
Therefore, Plaintiff will need to rely on the McDonnell Douglas factors. That standard
requires Plaintiff to establish that: "(1) she belongs to a protected class, (2) she was
performing according to her employer's legitimate expectations, (3) she suffered an adverse
Case 4:25-cv-00339-RCC-LCK Document 55 Filed 06/12/26 Page 6 of 15

- 7 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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)). Plaintiff is not obligated to plead a prima facie case but must
allege facts that state a claim to relief under Title VII. See Swierkiewicz v. Sorema N. A.,
534 U.S. 506, 511, 514 (2002). This requires that Plaintiff allege one or more actions by
Defendants that qualified as an adverse employment action under the law.
"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. 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. In the Second
Amended Complaint, Plaintiff cited the written warnings she received, being ignored by a
manager, the denial of extra compensation for working a “stacked shift,” and the lack of
promotion.
Compensation, Treatment by Management, and Written Warnings
First, although a change in compensation typically would be an actionable adverse
employment action, in this instance it does not qualify. Plaintiff alleged that, at an earlier
time, employees had been compensated for working two roles during one shift. But when
she asked, in August 2023, she was told that was no longer the policy and no employees
would be compensated for this type of shift. (Doc. 50-1 at 7.) Because this change was
applicable to all employees, it cannot serve as evidence of discrimination against her. Next,
as previously explained to Plaintiff, being ignored by a manager does not qualify as an
adverse employment action because "[m]ere 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).
Case 4:25-cv-00339-RCC-LCK Document 55 Filed 06/12/26 Page 7 of 15

- 8 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Finally, the Court looks at the primary allegations by Plaintiff, that she received
three written warnings, in May 2023, February 2024, and April 2024. The first two were
focused on tardiness and unexcused absences for scheduled shifts. (Doc. 50-1 at 23, 30–
31.) The final written warning was broader and included specific examples of errors in job
performance. (Id. at 32.)2 The Ninth Circuit has held that a written warning may qualify as
an adverse employment action. See Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d
840, 847–48 (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)). However, the Ninth
Circuit has never found that a written warning or poor performance evaluation, standing
alone, is sufficient to satisfy the second McDonnell Douglas factor. In Fonseca, the
warning letter was publicized to other employees, and the employee alleged several other
adverse employment actions: employer passed over Fonseca in favor of white workers for
overtimes shifts, he had to file repeated grievances for missed compensation, and payment
for successful grievances was delayed. 374 F.3d at 847–48. In Yartzoff, an undeserved
evaluation was preceded and followed by the transfer of job duties to other employees. 809
F.2d at 1376. In another case, the Ninth Circuit found that an evaluation with some less-
than-perfect ratings was not an adverse employment action because it was not disseminated
and the employee “was not demoted, was not stripped of work responsibilities, was not
handed different or more burdensome work responsibilities, was not fired or suspended,
was not denied any raises, and was not reduced in salary or in any other benefit.” Kortan
v. Cal. Youth Auth., 217 F.3d 1104, 1113 (9th Cir. 2000). Plaintiff, here, is in a similar
position because the written warnings did not affect the terms of her employment, she had
no change to her duties or compensation.
This Court has held several times that reprimand letters from an employer without
accompanying employment consequences do not qualify as adverse employment actions.
See Overton v. Mayorkas, 754 F. Supp. 3d 862, 874 (D. Ariz. 2024) (finding letter of
2 Plaintiff submitted only the first page of the final written warning, so the Court has
not seen it in entirety.
Case 4:25-cv-00339-RCC-LCK Document 55 Filed 06/12/26 Page 8 of 15

- 9 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
reprimand, that would be removed from file in two years, without other consequences was
not an adverse employment action); Moore v. Marriott Int'l, Inc., No. CV-12-00770-PHX-
BSB, 2014 WL 5581046, at *10–11 (D. Ariz. Oct. 31, 2014) (finding a written warning
that could result in further discipline if other violations occurred was not an adverse
employment action because it imposed no adverse change in the terms of employment);
Silva v. Chertoff, No. CV 04-220-TUC-CKJ, 2007 WL 1795786, at *7 (D. Ariz. June 20,
2007) (finding a letter of reprimand was not an adverse employment action because it
carried no employment consequences and remained in the file for a limited period of time).
Other district courts in this circuit have reached the same conclusion. See Thomas v.
Spencer, 294 F. Supp. 3d 990, 999 (D. Haw. 2018) (finding a letter of reprimand that
remained in file for two years but imposed no other consequences was not an adverse
employment action); Hoang v. Wells Fargo Bank, N.A., 724 F. Supp. 2d 1094, 1104 (D.
Or. 2010) (finding warning letter was not an adverse employment action because there
were no consequences to conditions of employment as a result); cf. Wilson v. City of
Fresno, 763 F. Supp. 3d 1073, 1096 (E.D. Cal. 2025) (finding a letter of reprimand
qualified as an adverse employment action because it later was relied upon in suspending
the employee). Additionally, other circuits have concluded that disciplinary warning letters
do not amount to adverse employment actions if they do not impact the terms of
employment. See Overton, 754 F. Supp. 3d at 874–75 (citing Harris v. Potter, 310 F. Supp.
2d 18, 21 (D. D.C. 2004); Ogden v. Brennan, 657 F. App’x 232, 235 (5th Cir. 2016); Melton
v. U.S. Dept. of Labor, 373 F. App’x 572, 578 (6th Cir. 2010)). In the absence of any other
allegations that amount to an adverse employment action, the written warnings do not
qualify because they did not impact the terms of her employment.
Failure to Promote
Plaintiff alleged that she was unable to obtain a promotion due to discrimination.
The elements of a prima facie claim for failure to promote require, in part, that the
employee applied for and was qualified for an available promotion and was rejected for the
position. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004); Lyons v.
Case 4:25-cv-00339-RCC-LCK Document 55 Filed 06/12/26 Page 9 of 15

- 10 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
England, 307 F.3d 1092, 1112 (9th Cir. 2002). There is flexibility in how a plaintiff could
satisfy these factors if the employer had no formal application process or there was no
competitive process for promotions. Lyons, 307 F.3d at 1114. However, Plaintiff has not
alleged there was an opening for a promotion, identified a promotion for which she was
qualified, or alleged that a promotion was awarded to someone else less qualified during
the relevant period. Therefore, she has failed to set forth sufficient allegations to state a
claim for a failure to promote.
Retaliation
Plaintiff alleged that her employer and supervisors retaliated against her for
complaining to corporate management. 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 that she engaged in a protected activity.
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)
(emphasis added). 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 Second Amended Complaint nor Plaintiff's motion response allege
that Plaintiff participated in a Title VII charge while still employed by Defendants. And
the EEOC letter attached to Plaintiff’s Second Amended Complaint indicates Plaintiff filed
Case 4:25-cv-00339-RCC-LCK Document 55 Filed 06/12/26 Page 10 of 15

- 11 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
her EEOC charge in March 2025, months after she left her employment with Defendant.
(Doc. 50-1 at 11.) Therefore, it does not appear the participation clause is implicated.
The Court next examines the opposition clause of Title VII. In the Second 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 she 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);
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).
Plaintiff was informed of this requirement for a retaliation claim in the Court’s
Report and Recommendation that advised dismissing the Amended Complaint. (Doc. 44
at 9.) In the Second Amended Complaint, Plaintiff again made only general allegations
stating she complained to her employer about harassment. In one instance, she alleged she
was retaliated against “for having an opinion and filing a complaint with Human
Resources.” (Doc. 50-1 at 10.) She did not allege in the current complaint or motion
response that she complained about racial discrimination in the workplace prior to leaving
her employment and filing an EEOC charge. Thus, she has not alleged that she engaged in
Case 4:25-cv-00339-RCC-LCK Document 55 Filed 06/12/26 Page 11 of 15

- 12 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
a protected activity. Additionally, as discussed above, Plaintiff failed to allege that she was
subjected to an adverse employment action. Therefore, she has failed to state a claim for
retaliation under Title VII.
Hostile Work Environment
Plaintiff alleged that she was subjected to a hostile work environment. 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,
339 F.3d at 798 ("teasing, offhand comments, and isolated incidents" are not sufficient);
Kortan, 217 F.3d at 1109–10 (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. Specifically, she alleges that her direct supervisor held her to a higher standard
than other employees, targeted and micromanaged her, altered her schedule, issued
writeups for minor things, and conducted surveillance of her. Additionally, a different
manager ignored her in front of other employees. However, Plaintiff did not allege any of
the stated harassment was of a racial nature, despite being informed of this element of a
hostile work environment claim in the Court’s prior Report and Recommendation. (Doc.
Case 4:25-cv-00339-RCC-LCK Document 55 Filed 06/12/26 Page 12 of 15

- 13 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
44 at 12.) She stated only that, after a manager ignored her in June 2023, she first thought
that her white managers might be discriminating against her because she was Native
American. (Doc. 50-1 at 5.) Plaintiff has not alleged that she was subjected to pervasive
race-based conduct that a reasonable person would find abusive. Therefore, she has failed
to state a claim for a hostile work environment.
Constructive Discharge
Plaintiff alleged that after two years without a resolution to her concerns from
management, she resigned due to ongoing discrimination. (Doc. 50-1 at 9.) Because she
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)). Because
Plaintiff’s allegations are insufficient to state a claim for hostile work environment, they
necessarily fail to state a claim for constructive discharge. Brooks, 229 F.3d at 930 (“Where
a plaintiff fails to demonstrate the severe or pervasive harassment necessary to support a
hostile work environment claim, it will be impossible for her to meet the higher standard
of constructive discharge: conditions so intolerable that a reasonable person would leave
the job.”).
Case 4:25-cv-00339-RCC-LCK Document 55 Filed 06/12/26 Page 13 of 15

- 14 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Individual Defendants
Plaintiff named two individuals as Defendants, Rising and Bottari. The Court
previously dismissed these two defendants with prejudice because they are not properly
named on a Title VII claim (Doc. 44 at 14; Doc. 48). See 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 and Amy Bottari
must, again, be dismissed with prejudice.
CONCLUSION
The Court determined that Plaintiff has failed to state a claim under any legal theory
in her Second Amended Complaint. As with Plaintiff’s Amended Complaint, 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. Plaintiff cannot cure the defects and state a claim
based on A.R.S. § 13-2923 or A.R.S. § 23-425 because those statutes do not create a private
right of action; therefore, amendment of those claims is not warranted.
When the Court reviewed Defendant’s first motion to dismiss, it provided Plaintiff
guidance on the elements of each type of Title VII claim that Plaintiff may have been trying
to allege. (Doc. 44.) With that information in hand, Plaintiff again has failed to state a claim
for discrimination pursuant to Title VII, as to disparate treatment, retaliation, hostile work
environment, or constructive discharge. Because Plaintiff has failed to state a Title VII
claim after three attempts, the Court finds that Plaintiff is unable to cure the defects, and
these claims should be dismissed with prejudice. Additionally, because Title VII claims
cannot be brought against individuals, and the Court previously dismissed with prejudice
Defendants Rising and Bottari, they were not properly named in the Second Amended
Case 4:25-cv-00339-RCC-LCK Document 55 Filed 06/12/26 Page 14 of 15

- 15 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Complaint and must be dismissed again. In sum, the Court finds that a third amendment is
not warranted. 3
RECOMMENDATION
Based on the foregoing, the Magistrate Judge recommends that the District Court
enter an order granting Defendants' Motion to Dismiss (Doc. 51). The Magistrate Judge
recommends the Second Amended Complaint be dismissed with prejudice.
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 12th day of June, 2026.
3 Defendants also sought dismissal because Plaintiff failed to allege that she
received a Right to Sue letter from the EEOC. (Doc. 51 at 7-8.) Plaintiff indicated that she
received a Right to Sue letter, but she alleged she received it on the same date that she filed
an EEOC charge (Doc. 50 at 5; Doc. 50-1 at 11), which is illogical. Because this is a curable
defect, the Court does not rely upon it in recommending dismissal without amendment.
Case 4:25-cv-00339-RCC-LCK Document 55 Filed 06/12/26 Page 15 of 15