Shoup v. Tucson Unified School District

MOTION to Dismiss for Failure to State a Claim

D. Ariz.December 9, 2016

-1- 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 Donald Peder Johnsen (011545) dpj@gknet.com R. Matthew Emerson (026512) matt.emerson@gknet.com GALLAGHER & KENNEDY, P.A. 2575 East Camelback Road Phoenix, Arizona 85016-9225 (602) 530-8000 Attorneys for defendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Sonia J. Shoup, Plaintiff, v. Tucson Unified School District No. 1, Defendant. ) ) ) ) ) ) ) ) ) ) No. 4:16-cv-00573-DCB MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Oral argument requested) Defendant Tucson Unified School District No. 1, by and through its undersigned counsel, respectfully moves the Court under Fed. R. Civ. P. 12(b) to dismiss the complaint in its entirety. The doctrine of res judicata bars the plaintiff’s claims, in light of the dismissal with prejudice of her first suit over these matters, in which she asserted or could have asserted all of the claims that she asserts in this suit. This motion is based upon the file, record, and proceedings herein, and the following memorandum of points and authorities. RESPECTFULLY SUBMITTED this 9th day of December, 2016. GALLAGHER & KENNEDY, P.A. By:/s/ Donald Peder Johnsen Attorneys for defendant Case 4:16-cv-00573-DCB Document 11 Filed 12/09/16 Page 1 of 9 -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 MEMORANDUM OF POINTS AND AUTHORITIES BACKGROUND INFORMATION This is an employment case. Plaintiff Sonia J. Shoup formerly was employed by Tucson Unified School District No. 1 as a registered school nurse. Complaint (Doc. 1), ¶ 9. 1 Ms. Shoup claims that the District subjected her to unlawful disability discrimination, an unlawful failure to provide reasonable accommodation, hostile work environment, and unlawful retaliation. Id. ¶¶ 15-20. She filed an administrative charge over that alleged treatment with the Arizona Civil Rights Division in 2010, and the ACRD issued a “right-to-sue” notice on her charge in May of this year. Id. ¶¶ 14, 24. This is Ms. Shoup’s second suit against the District. While her 2010 charge of discrimination was still pending with the ACRD, she filed a suit against the District in this Court in 2014 (Case No. 4:14-cv-00778-CKJ-LAB), similarly alleging unlawful disability discrimination, an unlawful failure to provide reasonable accommodation, hostile work environment, and unlawful retaliation. See Exhibit A attached hereto (Complaint; Doc. 1). 2 She ultimately stipulated to the dismissal of the suit, with prejudice and on the merits. See Exhibit B attached hereto (Stipulation to Dismissal; Doc. 25). Pursuant to that stipulation, this Court ordered the case dismissed. See Exhibit C attached hereto (Order; Doc. 26). In accord with that order, the Clerk then entered formal judgment of dismissal, with prejudice. See Exhibit D attached hereto (Judgment; Doc. 27). 1 For the purposes of this motion only, the District accepts the plaintiff’s allegations of facts of which she has personal knowledge as true. See, e.g., Calnetics Corp. v. Volkswagen of America, Inc., 532 F.2d 674, 683 (9th Cir.), cert. denied, 429 U.S. 940 (1976); EEOC v. California Micro Devices Corp., 869 F. Supp. 767, 770 (D. Ariz. 1994). The District reserves the right to contest all of the plaintiff’s allegations in all future proceedings. 2 The Court may take judicial notice of court filings and materials in related cases when considering a rule 12 motion. See, e.g., Manufactured Home Communities, Inc. v. City of San Jose, 420 F.3d 1022, 1037 (9th Cir. 2002). Case 4:16-cv-00573-DCB Document 11 Filed 12/09/16 Page 2 of 9 -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 That dismissal with prejudice notwithstanding, Ms. Shoup then filed this suit. As she did in her 2014 suit, Ms. Shoup again alleges unlawful disability discrimination, an unlawful failure to provide reasonable accommodation, hostile work environment, and unlawful retaliation. Complaint (Doc. 1), at 3-5. The following comparison of Ms. Shoup’s two complaints is illustrative: 2014 COMPLAINT 2016 COMPLAINT Employment Discrimination: Disability (29 U.S.C. § 791 & 42 U.S.C. § 12112) (Count One) Employment Discrimination: Disability (29 U.S.C. § 791 & 42 U.S.C. § 12112) (Count One) Employment Discrimination: Denial of Reasonable Accommodation (29 U.S.C. § 791 & 42 U.S.C. § 12112) (Count Three) Employment Discrimination: Denial of Reasonable Accommodation (29 U.S.C. § 791 & 42 U.S.C. § 12112) (Count Two) Employment Discrimination: Hostile Work Environment (29 U.S.C. § 791 & 42 U.S.C. § 2000e-2 & § 12112) (Count Four) Employment Discrimination: Hostile Work Environment (29 U.S.C. § 791 & 42 U.S.C. § 12112) (Count Three) Employment Discrimination: Retaliation (29 U.S.C. § 791 & 42 U.S.C. §§ 2000e-3 & 12203) (Count Five) Employment Discrimination: Retaliation (29 U.S.C. § 791 & 42 U.S.C. § 12203) (Count Four) Employment Discrimination: Sex (42 U.S.C. § 2000e-2) (Count Two) Omitted In other words, this suit omits one cause of action that Ms. Shoup asserted in her first suit (her claim of alleged sex discrimination). Otherwise, she asserts in this suit that the District violated all of the same laws that she claimed in her first suit the District violated. In light of the identity of the parties, the identity of the legal claims, and this Court’s dismissal of Ms. Shoup’s first suit with prejudice, the District approached Ms. Shoup’s counsel and requested that she dismiss this suit in deference to the principles of res judicata. Ms. Shoup declined, and so the District now moves to dismiss. ARGUMENT The doctrine of res judicata bars all claims that were or could have been asserted in a prior action between the parties. See, e.g., International Union of Operating Engineers-Employers Const. Indus. Pension, Welfare & Training Trust Funds v. Karr, Case 4:16-cv-00573-DCB Document 11 Filed 12/09/16 Page 3 of 9 -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 28 994 F.2d 1426, 1430 (9th Cir. 1993); Sidney v. Zah, 718 F.2d 1453, 1458 (9th Cir. 1983). The principle is “central to the purpose for which civil courts have been established, the conclusive resolution of disputes within their jurisdiction.” Montana v. United States, 440 U.S. 147, 153 (1979). Res judicata vindicates public as well as private interests. The doctrine spares the parties the burden of re-litigating identical issues, and vindicates their legitimate interests in repose. The doctrine also serves the public interests in avoiding inconsistent results and preserving judicial economy. Clements v. Airport Auth. of Washoe County, 69 F.3d 321, 330 (9th Cir. 1995). The doctrine applies in this case, and bars Ms. Shoup’s suit. I. THE DOCTRINE OF RES JUDICATA BARS MS. SHOUP’S CLAIMS. Res judicata applies when two cases involve an identity of or privity between the parties, the first case resulted in a final judgment on the merits, and the cases present an identity of claims. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003); Owens v. Kaiser Found’n Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001); Ross v. International Bhd. of Elec. Workers, 634 F.2d 453, 457 (9th Cir. 1980). All three of those elements are present here. A. The Cases Involve Identical Parties. Both of Ms. Shoup’s suits obviously involve identical parties; she sued the District in 2014, and she is suing the District again this time. Because the plaintiff and defendant are the same in both actions, the requisite identity or privity exists. See Tahoe- Sierra, 322 F.3d at 1081 (where parties in both actions are identical, there is “quite obviously” privity). B. Ms. Shoup’s First Case Resulted In A Final Judgment On The Merits. This Court dismissed Ms. Shoup’s first suit with prejudice and on the merits, and the Clerk entered judgment thereon. Such a disposition constitutes a judgment on the merits for purposes of res judicata. See Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1052 (9th Cir. 2005) (“a stipulated dismissal of an action with Case 4:16-cv-00573-DCB Document 11 Filed 12/09/16 Page 4 of 9 -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 prejudice in a federal district court generally constitutes a final judgment on the merits and precludes a party from reasserting the same claims in a subsequent action in the same court”); In re Baker, 74 F.3d 906, 910 (9th Cir. 1996) (“For res judicata purposes, an agreed or stipulated judgment is a judgment on the merits.”); Intermedics, Inc. v. Ventritex, Inc., 775 F. Supp. 1258, 1262 (N.D. Cal. 1991) (“a voluntary dismissal, with prejudice, entered by stipulation of the parties, is considered a final judgment on the merits for purposes of res judicata”). C. The Cases Present An Identity Of Claims. The “most important” and “outcome determinative” consideration in assessing whether the cases present an identity of claims is whether the two suits arise out of a common transactional nucleus of facts. Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 988 (9th Cir. 2005); International Union of Operating Engineers- Employers Constr. Indus. Pension, Welfare & Training Trust Funds v. Karr, 994 F.2d 1426, 1429 (9th Cir. 1993). 3 Whether separate suits arise from the same transactional nucleus “depends on whether they are related to the same set of facts and whether they could conveniently be tried together.” Western Sys., Inc. v. Ulloa, 958 F.2d 864, 871 (9th Cir. 1992). New claims arising from the same nucleus of facts will be subject to res judicata “if the claims could have been brought in the earlier action.” Tahoe-Sierra, 322 F.3d at 1078. Ms. Shoup’s 2014 suit and this action plainly do involve a common transactional nucleus of facts. The Ninth Circuit has confirmed that an employment relationship constitutes the relevant transactional nucleus for purposes of res judicata. See Mpoyo, 430 F.3d at 987 (“Because both sets of Mpoyo’s claims arise from Litton’s conduct while Mpoyo was an employee and specifically from the events leading to his termination, his claims relate to the same set of facts.”); Gregory v. Widnall, 153 F.3d 1071, 1074 (9th 3 Courts also may assess whether rights or interests established in the first suit would be destroyed or impaired by prosecution of the second, whether both suits involve infringement of the same right, and whether both suits present substantially the same evidence. Mpoyo, 430 F.3d at 987-88. Case 4:16-cv-00573-DCB Document 11 Filed 12/09/16 Page 5 of 9 -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 Cir. 1998) (res judicata bars consideration of a hostile work environment claim that could have been raised in a prior discrimination action between the same parties); see also Wilkes v. Wyoming Dep’t of Empl. Div. of Lab. Standards, 314 F.3d 501, 504 (10th Cir. 2002) (“all claims arising from the same employment relationship constitute the same transaction or series of transactions for claim preclusion purposes”) (internal quotation marks and citations omitted); Lee v. Arizona, 2011 Westlaw 2580400 *8 (D. Ariz. 2011) (all of plaintiff’s claims of discrimination against same employer “arise from the same nucleus of facts”). In this instance, both suits plainly arise out of the same transactional nucleus of facts: Ms. Shoup’s employment relationship with the District. Moreover, both suits are based on alleged discrimination, hostile work environment, and retaliation. The suits essentially assert identical legal claims anchored in the same federal statutes. Furthermore, they both assert that the District unfairly or wrongfully disciplined Ms. Shoup, and they both allege that the District subjected her to adverse employment actions and denial of reasonable accommodation. That the second suit alleges a few particular instances of conduct that did not appear in the first suit is immaterial. For one thing, both suits expressly assert the general legal claims that the District failed to accommodate Ms. Shoup, that the District discriminated against her on the basis of a disability, that the District unlawfully subjected her to a hostile work environment, and that the District unlawfully retaliated against her. For another, as the Ninth Circuit has made clear, a plaintiff “cannot avoid the bar of res judicata merely by alleging conduct by the defendant not alleged in [the] prior action.” McClain v. Apodaca, 793 F.2d 1031, 1034 (9th Cir. 1986); see also Costantini v. Trans World Airlines, 681 F.2d 1199, 1201 (9th Cir. 1982) (“appellant does not avoid the bar of res judicata merely because he now alleges conduct by TWA not alleged in his prior suit”). All of the claims and grounds for recovery that Ms. Shoup asserts in this second suit were known and available to her when she filed the first suit. Those claims Case 4:16-cv-00573-DCB Document 11 Filed 12/09/16 Page 6 of 9 -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 and grounds are all related to each other and could have been conveniently tried together. Her failure to assert all bases for recovery at that time precludes her from doing so now. II. THE TIMING OF THE ACRD’S ‘RIGHT-TO-SUE’ LETTER DOES NOT PREVENT THE APPLICATION OF RES JUDICATA. Ms. Shoup apparently hopes to avoid the impact of res judicata through her assertion that the Arizona Civil Rights Division did not issue a “right-to-sue” notice on the particular events that she puts at issue in this suit until this year. See Complaint (Doc. 1) ¶ 24. As the Ninth Circuit and the District of Arizona have concluded in case after case, such an assertion does not alter the res judicata analysis. The doctrine of res judicata “bars not only all claims that were actually litigated, but also all claims that could have been asserted in the prior action.” International Union of Operating Engineers-Employers Constr. Indus. Pension, Welfare & Training Trust Funds v. Karr, 994 F.2d 1426, 1430 (9th Cir. 1993) (internal quotation marks and citation omitted); see also Sidney v. Zah, 718 F.2d 1453, 1458 (9th Cir. 1983) (res judicata “bars litigation of all matters which could have been raised in support of a cause of action previously litigated”). Thus, the pertinent inquiry does not focus only on the claims that Ms. Shoup did assert in her first suit, but also asks whether she could have asserted in the first suit the claims that she now seeks to assert in this action. She certainly could have asserted her current claims in the first suit, which means that res judicata applies. Specifically, Ms. Shoup could have requested a right-to-sue notice on her ACRD charge before she filed her first suit. See 29 C.F.R. § 1601.28(a)(1) (“when a person claiming to be aggrieved requests, in writing, that a notice of right to sue be issued ... the Commission shall promptly issue such notice”). She also could have requested a stay of the first suit pending the ACRD’s disposition of that charge and then amended her complaint in that suit to proceed on those issues. See, e.g., Forsman v. Chicago Title Ins. Co., 2006 Westlaw 4682253 *2 (D. Ariz. 2006). She did neither. The Ninth Circuit has confirmed that res judicata applies on those facts, and bars claims of the type that Ms. Shoup now seeks to assert. See Owens v. Kaiser Found. Case 4:16-cv-00573-DCB Document 11 Filed 12/09/16 Page 7 of 9 -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 Health Plan, Inc., 244 F.3d 708, 715 (9th Cir. 2001) (where plaintiffs did not secure right-to-sue letters before commencing first action or seek to stay first action pending receipt of such letters, res judicata barred second action over events at issue in pending EEOC charges). This Court has followed and applied that clear precedent routinely. See Bacon–Dorow v. Prescott Unified School District No. 1, 2014 Westlaw 5820986 *3 (D. Ariz. 2014) (“Plaintiff did not attempt to stay her first action for the purpose of pursuing a right-to-sue letter ... and her current claim is not shielded from res judicata simply because she had not exhausted her administrative remedies before resolving the previous action”) (granting motion to dismiss); Jones-Rankins v. Cardinal Health, Inc., 2013 Westlaw 2370591 *3 (D. Ariz. 2013) (“the pending EEOC claim is no defense to res judicata preclusion”) (motion to dismiss granted); Gilbert v. Maricopa County Superior Court Dep’t of Juvenile Probation, 2011 Westlaw 251463 *2 (D. Ariz. 2011) (“under Owen, a plaintiff’s Title VII claims are barred by res judicata even though plaintiff has not yet received a ‘right to sue’ letter from the EEOC at the time of their first action”) (granting motion to dismiss); Gilbert v. Maricopa County, 2010 Westlaw 2712225 *3 (D. Ariz. 2010) (plaintiff’s receipt of right-to-sue letter after dismissal of prior suit “does not immunize those incidents from a res judicata bar”) (motion to dismiss granted). Ms. Shoup undeniably could have asserted her current claims in her first suit. Under those circumstances res judicata applies and bars this suit. CONCLUSION For all of these reasons, the District respectfully requests that the Court dismiss the complaint in its entirety, and award the District the attorney fees that it has incurred in this action in accord with A.R.S. § 12-341.01 and 42 U.S.C. §§ 1988, 2000e-5(k), and 12205. RESPECTFULLY SUBMITTED this 9th day of December, 2016. GALLAGHER & KENNEDY, P.A. By:/s/ Donald Peder Johnsen Attorneys for defendant Case 4:16-cv-00573-DCB Document 11 Filed 12/09/16 Page 8 of 9 -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 I certify that on this 9th day of December, 2016, I electronically transmitted a PDF version of this document to the Clerk of Court, using the CM/ECF System, for filing and for transmittal of a Notice of Electronic Filing to the following CM/ECF registrant: Richard M. Martinez (007763) Attorney for plaintiff /s/ Donald Peder Johnsen 5731490.2 Case 4:16-cv-00573-DCB Document 11 Filed 12/09/16 Page 9 of 9 EXHIBIT A Case 4:16-cv-00573-DCB Document 11-1 Filed 12/09/16 Page 1 of 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 RICHARD M. MARTINEZ, SBA No. 7763 300 South Convent Avenue Tucson, Arizona 85701 (520) 327-4797 phone (520) 320-9090 fax richard@richardmartinezlaw.com Counsel for the Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Sonia J. Shoup, ) ) No. Plaintiff, ) ) COMPLAINT v. ) ) (Jury Trial Demanded) Tucson Unified School District ) No. 1, ) ) Defendant. ) ) Plaintiff alleges: I. JURISDICTION 1. Jurisdiction is conferred on this Court by 28 U.S.C. § 1331 and 42 U.S.C.§§ 2000e-5(f)(3) & 12117. II. VENUE 2. Venue is proper in this Court because the defendants’ unlawful conduct occurred within in the State of Arizona in Pima County. III. PARTIES 3. Plaintiff is a citizen of the United States and a resident of the State of Arizona living in Pima County. 4. Defendant is public K-12 school district that operates in Pima County as authorized by the statutory authority provided by the Legislature of the State of Arizona. IV. GENERAL ALLEGATIONS 5. Plaintiff is female and an individual who suffers from a permanent physical impairment. Case 4:14-cv-00778-CKJ-LAB Document 1 Filed 01/22/14 Page 1 of 66 5 3 DCB Document 11-1 Filed 12/09/16 Page 2 of 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 -2- 6. At all times relevant to this lawsuit, defendant has been an employer subject to federal law prohibiting employment discrimination, including the definition provided at 42 U.S.C. § 12111(5). 7. At all times relevant to this lawsuit, plaintiff was an employee of the defendant covered by federal law prohibiting employment discrimination and retaliation, including within the definition provided at 42 U.S.C. § 12111(4). 8. At all times relevant to this complaint, defendant has been the recipient of federal funds which were accepted and expended with the knowledge of all commensurate obligations and duties prohibiting employment discrimination and retaliation. 9. Plaintiff was employed with the defendant in a full time permanent position as a Registered School Nurse. 10. While employed with the defendant, plaintiff identified herself as a person with a disability that required reasonable accommodation in order to perform the essential functions of her position. 11. While employed with the defendant and provided reasonable accommodation, plaintiff was able to perform the essential functions of her position. 12. While employed with the defendant and provided reasonable accommodation, plaintiff was able to perform in her position in a competent manner that met the performance requirements of her position. 13. While employed with the defendant, plaintiff filed a Charge of Employment Discrimination simultaneously with the Civil Rights Division of the Arizona Attorney General’s Office (ACRD) and the United States Equal Employment Opportunity Commission (EEOC); this Charge was filed in June of 2010. 14. After investigation of the June 2010 Charge of Discrimination by the ACRD, a “reasonable cause” determination issued in May of 2011 that found violations of law due to the conduct and actions of the defendant. // Case 4:14-cv-00778-CKJ-LAB Document 1 Filed 01/22/14 Page 2 of 66 5 3 DCB Document 11-1 Filed 12/09/16 Page 3 of 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 -3- 15. During the 2011-12 school year plaintiff was assigned to three schools, Banks Naylor and Sewell. 16. During the 2011-12 school year plaintiff was denied needed staff support at Naylor and subjected to repeated acts of abusive conduct by a male subordinate at Banks that was reported. No appropriate remedial measure was provided. 17. For the 2011-12 school year plaintiff was provided a performance evaluation that was not accurate and critical of the plaintiff’s performance. 18. During the 2012-13 school year plaintiff was assigned to three schools, Banks Naylor and Sewell. 19. During the 2012-13 school year plaintiff was again subjected to abusive conduct by a male subordinate at Banks that was reported and no appropriate remedial measure was provided. 20. During the 2012-13 school year plaintiff received discipline in the form of a letter of direction on or about August 6, 2012, that was based upon inaccurate information and administered without prior notice or any opportunity to respond. 21. During the 2012-13 school year plaintiff’s employment with the defendant was involuntarily terminated. 22. After plaintiff identified herself to the defendant as an individual with a disability, requested reasonable accommodation and filed a Charge of Discrimination with the ACRD and EEOC, she was subjected to adverse employment actions by the defendant, including denial of reasonable accommodation and termination. 23. Plaintiff filed a second Charge of Discrimination simultaneously with the ACRD and the EEOC on or about August 30, 2012 (EEOC Charge No. 35A-2012-490) concerning the adverse treatment she was being subjected to by the defendant. 24. The EEOC has issued plaintiff a Notice of Right to Sue for Charge No. 35A- 2012-490 dated October 23, 2013. // Case 4:14-cv-00778-CKJ-LAB Document 1 Filed 01/22/14 Page 3 of 66 5 3 DCB Document 11-1 Filed 12/09/16 Page 4 of 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 -4- 25. Plaintiff has complied with all jurisdictional prerequisites for the filing of this complaint. COUNT ONE EMPLOYMENT DISCRIMINATION: Disability (29 U.S.C § 791, et seq. & 42 U.S.C. § 12112 ) 26. Plaintiff hereby re-alleges and incorporates all allegations contained in paragraphs 1 through 25 as if fully set forth herein. 27. Defendant’s conduct and actions against the plaintiff constitute violations of federal law, specifically 29 U.S.C § 791, et seq. and 42 U.S.C. § 12112. 28. As a direct and proximate result of the conduct of the defendant, plaintiff suffered injury including but not limited to economic loss, emotional distress, mental anguish, humiliation, indignation, embarrassment, loss of enjoyment of life and deprivation of her rights to equal employment opportunities. COUNT TWO EMPLOYMENT DISCRIMINATION: Sex (42 U.S.C. § 2000e-2) 29. Plaintiff hereby re-alleges and incorporates all allegations contained in paragraphs 1 through 28 as if fully set forth herein. 30. Defendant’s conduct and actions against the plaintiff constitute violations of federal law, specifically 42 U.S.C. § 2000e-2. 31. As a direct and proximate result of the conduct of the defendant, plaintiff suffered injury including but not limited to economic loss, emotional distress, mental anguish, humiliation, indignation, embarrassment, loss of enjoyment of life and deprivation of her rights to equal employment opportunities. COUNT THREE EMPLOYMENT DISCRIMINATION: Denial of Reasonable Accommodation (29 U.S.C § 791, et seq. & 42 U.S.C. § 12112) 32. Plaintiff hereby re-alleges and incorporates all allegations contained in Case 4:14-cv-00778-CKJ-LAB Document 1 Filed 01/22/14 Page 4 of 66 5 3 DCB Document 11-1 Filed 12/09/16 Page 5 of 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 -5- paragraphs 1 through 31 as if fully set forth herein. 33. Defendant’s conduct and actions against the plaintiff constitute violations of federal law, specifically 29 U.S.C § 791, et seq. and 42 U.S.C. § 12112. 34. As a direct and proximate result of the conduct of the defendant, plaintiff suffered injury including but not limited to economic loss, emotional distress, mental anguish, humiliation, indignation, embarrassment, loss of enjoyment of life and deprivation of her rights to equal employment opportunities. COUNT FOUR EMPLOYMENT DISCRIMINATION: Hostile Work Environment (29 U.S.C § 791, et seq. & 42 U.S.C. § 2000e-2 & § 12112) 35. Plaintiff hereby re-l6leges and incorporates all allegations contained in paragraphs 1 through 34 as if fully set forth herein. 36. Defendant’s conduct and actions against the plaintiff constitute violations of federal law, specifically 29 U.S.C § 791, et seq. and 42 U.S.C. §2000e-2 and § 12112. 37. As a direct and proximate result of the conduct of the defendant, plaintiff suffered injury including but not limited to economic loss, emotional distress, mental anguish, humiliation, indignation, embarrassment, loss of enjoyment of life and deprivation of her rights to equal employment opportunities. COUNT FIVE EMPLOYMENT DISCRIMINATION: Retaliation (29 U.S.C § 791, et seq., 42 U.S.C. § 2000e-3 & § 12203) 38. Plaintiff hereby re-alleges and incorporates all allegations contained in paragraphs 1 through 37 as if fully set forth herein. 39. Defendant’s conduct and actions against the plaintiff constitute violations of federal law, specifically 29 U.S.C § 791, et seq. and 42 U.S.C. § 2000e-3 and § 12203. 40. As a direct and proximate result of the conduct of the defendant, plaintiff Case 4:14-cv-00778-CKJ-LAB Document 1 Filed 01/22/14 Page 5 of 66 5 3 DCB Document 11-1 Filed 12/09/16 Page 6 of 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 -6- suffered injury including but not limited to economic loss, emotional distress, mental anguish, humiliation, indignation, embarrassment, loss of enjoyment of life and deprivation of her rights to equal employment opportunities. V. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays: 1. That this court declare the actions complained of herein to be in violation of 29 U.S.C § 791, et seq., 42 U.S.C. §§ 2000e-2 & 3 §§ 12112 & 12203. 2. That the defendant be ordered to take appropriate affirmative acts to insure that the conduct and actions complained of herein are not engaged in again and to place plaintiff in the position she would currently enjoy but for the unlawful conduct of the defendant. 3. That the defendant, including all officers, director, agents, employees and successors of the defendant, be permanently enjoined from retaliating against any individual in violation of 29 U.S.C. § 794 and 42 U.S.C.§12203. 4. That the plaintiff be awarded actual damages against the defendant; 5. That the plaintiff be awarded compensatory damages against the defendant; 6. That plaintiff be awarded her attorneys' fees; 7. That the plaintiff be awarded her costs; and 8. That the plaintiff be awarded all other relief that this court deems just and proper under the circumstances. JURY TRIAL DEMAND Pursuant to Rule 38, FRCP, a trial by jury is demanded. DATED this 22nd day of January, 2014. s/Richard M. Martinez, Esq. RICHARD M. MARTINEZ, ESQ. Counsel for the Plaintiff Case 4:14-cv-00778-CKJ-LAB Document 1 Filed 01/22/14 Page 6 of 66 5 3 DCB Document 11-1 Filed 12/09/16 Page 7 of 15 EXHIBIT B Case 4:16-cv-00573-DCB Document 11-1 Filed 12/09/16 Page 8 of 15 -1- 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 Donald Peder Johnsen (011545) dpj@gknet.com GALLAGHER & KENNEDY, P.A. 2575 East Camelback Road Phoenix, Arizona 85016-9225 (602) 530-8000 Attorneys for defendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Sonia J. Shoup, Plaintiff, v. Tucson Unified School District No. 1, Defendant. ) ) ) ) ) ) ) ) ) ) No. CIV-14-778-TUC-JAS (LAB) STIPULATION TO DISMISSAL The parties herein, by and through their respective undersigned counsel, and pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), stipulate that this action, and all of the plaintiff’s claims herein, may be dismissed in their entirety, with prejudice and on the merits, and without awarding attorney fees, costs, or disbursements to any party. RESPECTFULLY SUBMITTED this 29th day of July, 2015. RICHARD M. MARTINEZ LAW OFFICE By:/s/ Richard M. Martinez (with consent) Attorneys for plaintiff RESPECTFULLY SUBMITTED this 29th day of July, 2015. GALLAGHER & KENNEDY, P.A. By:/s/ Donald Peder Johnsen Attorneys for defendant Case 4:14-cv-00778-JAS-LAB Document 25 Filed 07/29/15 Page 1 of 2Case 4:16-cv-00573-DCB Document 11-1 Filed 12/09/16 Page 9 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 I certify that on this 29th day of July, 2015, I electronically transmitted a PDF version of this document to the Clerk of Court, using the CM/ECF System, for filing and for transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Richard M. Martinez (007763) Attorney for plaintiff /s/ Donald Peder Johnsen 4862778 Case 4:14-cv-00778-JAS-LAB Document 25 Filed 07/29/15 Page 2 of 26 5 3 DCB Document 11-1 Filed 12/09/16 Page 10 of 15 -1- 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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Sonia J. Shoup, Plaintiff, v. Tucson Unified School District No. 1, Defendant. ) ) ) ) ) ) ) ) ) ) No. CIV-14-778-TUC-JAS (LAB) ORDER Pursuant to the parties’ stipulation under Fed. R. Civ. P. 41(a)(1)(a)(ii), and good cause appearing herefor, IT IS HEREBY ORDERED that this action, and all of the plaintiff’s claims herein, be dismissed in their entirety, with prejudice and on the merits, and without awarding attorney fees, costs, or disbursements to any party. Case 4:14-cv-00778-JAS-LAB Document 25-1 Filed 07/29/15 Page 1 of 1Case 4:16-cv- 0573-DCB Document 11-1 Filed 12/ 9/16 Page 11 of 15 EXHIBIT C Case 4:16-cv-00573-DCB Document 11-1 Filed 12/09/16 Page 12 of 15 -1- 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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Sonia J. Shoup, Plaintiff, v. Tucson Unified School District No. 1, Defendant. ) ) ) ) ) ) ) ) ) ) No. CIV-14-778-TUC-JAS (LAB) ORDER Pursuant to the parties’ stipulation under Fed. R. Civ. P. 41(a)(1)(a)(ii), and good cause appearing herefor, IT IS HEREBY ORDERED that this action, and all of the plaintiff’s claims herein, be dismissed in their entirety, with prejudice and on the merits, and without awarding attorney fees, costs, or disbursements to any party. The Clerk of the Court shall enter judgment and close the file in this case. Dated this 29th day of July, 2015. Honorable James A. Soto United States District Judge Case 4:14-cv-00778-JAS-LAB Document 26 Filed 07/31/15 Page 1 of 16 5 3 DCB Document 11-1 Filed 12/09/16 Page 13 of 15 EXHIBIT D Case 4:16-cv-00573-DCB Document 11-1 Filed 12/09/16 Page 14 of 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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Sonia J. Shoup, Plaintiff, v. Tucson Unified School District, Defendant. NO. CV-14-00778-TUC-JAS JUDGMENT OF DISMISSAL IN A CIVIL CASE Decision by Court. This action came for consideration before the Court. The issues have been considered and a decision has been rendered. IT IS ORDERED AND ADJUDGED, pursuant to the parties’ Joint Stipulation of Dismissal with Prejudice, that this case is dismissed with prejudice. Each party will bear its own costs and attorneys’ fees. Brian D. Karth District Court Executive/Clerk of Court July 31, 2015 s/ Keli Petrilla By Deputy Clerk Case 4:14-cv-00778-JAS-LAB Document 27 Filed 07/31/15 Page 1 of 16 5 3 DCB Document 11-1 Filed 12/09/16 Page 15 of 15