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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Dianne G. Rivera, 

Plaintiff, 

v. 

Coventry Health and Life Insurance 

Company, et al., 

Defendants.

No. CV-15-02213-PHX-GMS

ORDER 

 Pending before the Court is the Motion to Dismiss of Defendant (“Aetna”).1

 (Doc. 

9). For the following reasons, the Court grants Aetna’s motion to dismiss with leave for 

Rivera to amend. 

BACKGROUND 

 Plaintiff Dianne Rivera is a resident and citizen of the State of Arizona. She 

brings claims against Coventry/Aetna Health Care and/or Aetna Inc. for age and race 

discrimination, retaliation, hostile work environment, slander and unjust enrichment. 

 Rivera was employed as a Concierge Specialist at Aetna from June 3, 2013 until 

August 4, 2014. She alleges that she was hired at a lower wage than others with less 

experience. However, according to her complaint, Aetna indicated that she would 

receive bonuses as a material component of her salary resulting in a rate of pay 

 

1

 Erroneously named Coventry Health and Life Insurance Company, et al.in the court filings. Defendant’s correct name is Aetna Health Management, LLC. 

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equivalent to $15.00 per hour. She further alleges she was assured she would receive 

opportunities for advancement before others received such opportunities and that she 

would receive monetary contributions to make up for the higher deductible that 

accompanied her medical insurance benefits. Rivera claims she accepted the job because 

Aetna assured her of the bonus plan and the opportunity to advance. 

 Rivera claims that in October or November of 2013, her supervisor, Aisha 

Bennett, threatened to terminate her because she left work five minutes early on ten 

occasions. However, Rivera alleges that on those ten occasions she began work 

sufficiently early to make up her required time. Rivera complained about this in a letter 

to Human Resources. In the letter, Rivera also informed Human Resources that shortly 

after she was hired, she questioned her instructors and apparently received some form of 

reprimand for doing so. Rivera claims a younger African-American coworker behaved in 

a similar way but was not reprimanded. 

 In or around January 2014, some incident occurred in which Rivera raised her 

voice to a customer. The complaint implies but does not state that Rivera received a 

written reprimand for this. 

 Approximately three months later, Rivera wrote a letter complaining that her 

supervisors had failed to give her a bonus. She alleges that she was “written up” in 

retaliation for submitting this complaint. In turn, she raised the matter with Von Young, 

the director of her program. Shortly thereafter, she was written up by Mr. Young. 

 Finally, Rivera recounts a department meeting on July 18, 2014, at which she 

alleges her supervisor stated that Rivera refused to help her fellow employees.2

 During 

 

2 Rivera vaguely seems to allege that this comment was slanderous in her complaint. 

Complaint. ¶ 35. However, while Rivera claims this statement was offensive, she fails to allege 

it is false. Therefore, she does not properly raise a slander claim. See Snyder v. HSBC Bank, 

USA, N.A., 913 F. Supp. 2d 755, 770. (“Under Arizona law, elements of slander of title are the 

uttering and publication of the slanderous words by the defendant, the falsity of the words, 

malice and special damages.”) (internal citations omitted). Zandonatti v. MERS, 2011 WL 

7553523, at *7 (D.Ariz. Dec. 16, 2011) (citing City of Tempe v. Pilot Properties, Inc., 527 P.2d 

515 (Az. Ct. App. 1974) (citing 50 Am.Jur.2d, Libel and Slander § 541, p. 1060 (1970))); see 

also In re Mortgage Electronic Registration Systems (MERS) Litigation, 2011 WL 4550189 at *9 

(D.Ariz. Oct. 3, 2011).

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the same meeting, Rivera alleges that her supervisor explained to the present employees 

that Rivera was “always hot because she was going through her personal summer.” 

Rivera alleges that this statement singled her out for her age, which humiliated her. 

 It is unclear from the complaint as to why Rivera’s employment terminated. 

DISCUSSION 

I. Legal Standard 

A. Pleading Standard: Rule 8 and Iqbal/Twombly 

 On a motion to dismiss under Federal Rule of Civil Procedure (“F.R.C.P.”) 

12(b)(6), all allegations of material fact are assumed to be true and construed in the light 

most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th 

Cir. 2009). To survive dismissal for failure to state a claim pursuant to F.R.C.P. 12(b)(6), 

a complaint must contain more than “labels and conclusions” or a “formulaic recitation of 

the elements of a cause of action”; it must contain factual allegations sufficient to “raise a 

right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 

(2007). While “a complaint need not contain detailed factual allegations . . . it must plead 

‘enough facts to state a claim to relief that is plausible on its face.’” Clemens v. 

DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Twombly, 550 

U.S. at 570). A claim is plausible when Rivera presents factual content which “allows 

the court to draw the reasonable inference that [Aetna] is liable for the misconduct 

alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 

556). The plausibility standard “asks for more than a sheer possibility that a defendant 

has acted unlawfully. Where a complaint pleads facts which are ‘merely consistent with’ 

a defendant’s liability, it ‘stops short of the line between possibility and plausibility of 

entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 555) (internal citations 

omitted). Similarly, legal conclusions couched as factual allegations are not given a 

presumption of truthfulness, and “conclusory allegations of law and unwarranted 

inferences are not sufficient to defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 

696, 699 (9th Cir. 1998). Rivera must “nudge [her] claims” of invidious discrimination 

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“across the line from conceivable to plausible.” Iqbal, 556 U.S. at 680 (citing Twombly, 

550 U.S. at 547. 

 B. Lower Pleading Standard for Pro Se Litigants 

 However, pro se litigants will not be held to the same pleading standards as 

lawyers. “A document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, 

however inartfully pleaded, must be held to less stringent standards than formal pleadings 

drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. 

Gamble, 429 U.S. 97, 106 (1976) (internal quotation marks omitted); cf. F.R.C.P. 8(f) 

(“All pleadings shall be so construed as to do substantial justice”). Twombly and Iqbal

did not alter the treatment of pro se pleadings, so the Court’s obligation to construe pro se 

pleadings liberally remains. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

II. ANALYSIS OF CLAIMS 

As a preliminary matter, Rivera represents that she was an exceptional customer 

service representative and that another employee, who was hired at a higher rate of pay 

than was Rivera and who received all of her bonuses, required much coaching and did not 

conform with job requirements. (Complaint at ¶ 33.) Rivera states that this constitutes 

“discrimination and retaliation,” (id.,) but she failed to allege that the alleged disparate 

treatment was based on her race, age, or membership in any other protected class. As 

such, the facts in paragraph 33 of Rivera’s complaint fail to raise a plausible 

discrimination claim under any legal theory.

 A. Unjust Enrichment 

To plead a claim of unjust enrichment, Rivera must allege “(1) an enrichment, (2) 

an impoverishment, (3) a connection between the enrichment and impoverishment, (4) 

the absence of justification for the enrichment and impoverishment, and (5) the absence 

of a remedy provided by law.” Wang Elec., Inc. v. Smoke Tree Resort, LLC, 230 Ariz. 

314, 318 (Ariz. Ct. App. 2012). 

 “[W]here there is a specific contract which governs the relationship of the parties, 

the doctrine of unjust enrichment has no application.” Brooks v. Valley Nat. Bank, 113 

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Ariz. 169, 174, 548 P.2d 1166, 1171 (1976). Because a specific contract governed the 

terms of Rivera’s employment with Aetna, her unjust enrichment claim fails. 

B. Hostile Work Environment 

 Construing the complaint liberally, Rivera attempts to raise an age-related hostile 

work environment claim. (See Complaint at ¶ 35.) Even if such a claim is cognizable,3

Rivera fails to allege plausible facts that give rise to such a claim. 

 To raise a hostile work environment claim, Rivera must show harassing behavior 

“sufficiently severe or pervasive to alter the conditions of [her] employment.” Meritor 

Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, (1986) (internal quotation marks omitted). 

“[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious)” 

fail to rise to the level of severity necessary to sustain a hostile work environment claim. 

Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). Here, Rivera alleges one 

occasion where her supervisor, Ms. Bennet, publically announced that Rivera “was going 

through a personal summer,” a comment that Rivera interpreted as singling her out due to 

her “age and health conditions.” (Complaint at ¶ 35.) This isolated comment does not 

establish severe or pervasive harassing behavior. 

C. Retaliation 

 Title VII “prohibits retaliation against an employee ‘because [she] has opposed 

any practice made an unlawful employment practice’” by Title VII. Nelson v. Pima 

Cmty. College, 83 F.3d 1075, 1082 (9th Cir. 1996) (quoting 42 U.S.C. § 2000e-3(a)). 

“The elements of a Title VII retaliation claim include: (1) the employee was engaged in a 

protected activity, (2) the employee was thereafter subjected by his employer to an 

adverse employment action, and (3) establishment of a causal link between the protected 

activity and the adverse employment action.” Busby v. Kramer, 22 F. App’x 758, 760 

(9th Cir. 2001). 

 3 See Stevens v. Cty. of San Mateo, 267 F. App’x 684, 685 (9th Cir. 2008) (“Although we have never definitively recognized an age-related hostile work environment claim . . . 

even if such a claim is cognizable, Stevens failed to provide sufficient evidence to 

support [any] hostile environment claim.”). 

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 Rivera alleges that shortly after she was hired in June 2013, she was reprimanded 

for questioning her instructors, and a “younger African American female” behaved 

similarly but was not reprimanded. (Complaint at ¶ 28.) Rivera alleges that she reported 

this “discrimination” to Human Resources in a letter written months later (drafted 

primarily to complain that her supervisor was reprimanding her for leaving work early), 

although it is not clear from her complaint whether she believed she was treated 

differently from the other employee due to her age, race, or another factor. (Id.) 

 Rivera further alleges that in or around January 2014, she wrote another letter 

stating that her supervisors had denied her a bonus to which she was entitled. Rivera 

alleges that she was “written up” after making this complaint and further alleges that her 

supervisor suggested that Rivera should have expected repercussions after making 

complaints about a supervisor. (Complaint at ¶ 30.) 

 Construing the allegations in Rivera’s complaint liberally, she nonetheless fails to 

make out a claim for retaliation because her letter faulting her supervisors for denying her 

a bonus was unrelated to any allegation of discrimination. (See Complaint at ¶ 30.) As 

such, that letter did not constitute protected activity under Title VII. 

 Assuming arguendo that the complaint Rivera had made approximately six months 

earlier (alleging that upon being hired, she was reprimanded for questioning her 

instructors when a “younger African American female” was not reprimanded for similar 

behavior) constituted protected activity, and also assuming arguendo that a written 

reprimand can constitute an adverse employment action, Rivera failed to allege any 

causal link between this earlier complaint and the adverse employment action six months 

later. (See Complaint at ¶¶ 28-30.) Therefore, Rivera fails to properly allege a claim of 

retaliation under Title VII. 

D. Age Discrimination 

 Rivera claims Aetna discriminated against her on the basis of her age and seeks to 

recover damages, presumably under the Age Discrimination in Employment Act of 1967 

(“ADEA”). To allege a disparate treatment claim under the ADEA, Rivera must allege 

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facts demonstrating that she: “1) was a member of the protected class [age 40-70]; 2) was 

performing [her] job in a satisfactory manner; 3) was discharged; and 4) was replaced by 

a substantially younger employee with equal or inferior qualifications.” Rose v. Wells 

Fargo & Co., 902 F.2d 1417, 1421 (9th Cir. 1990). 

 Rivera fails to establish a prima facie case of disparate treatment age 

discrimination. Rivera satisfies the first two prongs by alleging that she is a “person 

above the age of 40,” (Complaint at ¶ 35,) and that she was “an exceptionally good 

customer service representative” according to her performance review. (Complaint at 

¶ 33.) However, Rivera fails to satisfy the third and fourth prong, as she does not allege 

how her employment with Aetna came to end, and she fails to allege that she was 

replaced by “a substantially younger employee with equal or inferior qualifications.” 

Rose, 902 F.2d at 1421. The Court therefore dismisses Rivera’s age discrimination 

claim. 

 D. Race Discrimination 

 To make a claim for race discrimination under Title VII, Rivera must properly 

allege she (1) belongs to a protected class; (2) was qualified for the position; (3) was 

subject to an adverse employment action; and (4) similarly situated individuals outside 

her protected class were treated more favorably. Moran v. Selig, 447 F.3d 748, 753 (9th 

Cir. 2006). 

 Other than listing “race discrimination” among her claims in the first paragraph of 

her Complaint, Rivera references race only once, noting that shortly after being hired, she 

was reprimanded for questioning her instructors when a “younger African American 

female” was not reprimanded for similar behavior. (Complaint at ¶ 28.) 

 Nowhere in the Complaint does Rivera declare her own race, and as such, Rivera 

fails to allege that she is in a protected class. Moreover, assuming as true that Rivera was 

reprimanded for questioning her instructors, and that one other employee engaged in 

similar behavior and was not reprimanded, this does not “plausibly suggest an entitlement 

to relief.” Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014). One isolated incident 

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of a supervisor handling a similar matter differently with two different employees, with 

no pleaded facts that connect the inconsistency to race, does not give rise to a plausible 

race discrimination claim. Supervisors handle similar matters differently with different 

employees, due to differences in the employees’ attitudes and myriad other variables that 

affect managerial decisions. Without facts from which the Court could reasonably infer 

that the discrepancy was based on race, the claim cannot stand. See id. at 1136 (“[The] 

Complaint does not allege sufficient facts from which to infer [tortious behavior].”).

 The Court therefore dismisses Rivera’s race discrimination claim. 

III. LEAVE TO AMEND 

A. Leave to Amend the Complaint.

 “A pro se litigant must be given leave to amend his or her complaint unless it is 

absolutely clear the deficiencies of the complaint could not be cured by amendment.” 

Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). In this case, 

Rivera could cure the defect by asserting plausible claims under applicable laws. The 

Court will dismiss the complaint without prejudice and allow Rivera to file an amended 

complaint which properly invokes this Court’s jurisdiction. Rivera shall have until July 

30, 2016 to file an amended complaint. 

 B. Plaintiff’s Obligations.

 Rivera must become familiar with, and follow, the Federal Rules of Civil 

Procedure and the Rules of the United States District Court for the District of Arizona 

(“Local Rules”), which may be obtained in the Clerk of Court’s office. For purposes of 

the amended complaint, Rivera is directed to Rule 8 of the Federal Rules of Civil 

Procedure. Rule 8(a) provides that a complaint must contain: 

(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new 

jurisdictional support; 

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and 

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

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 The Supreme Court in Twombly and Iqbal explained the “short and plain 

statement” required by Rule 8(a)(2) needs to be plausible. Iqbal, 129 S. Ct. at 1949 

(citing Twombly, 550 U.S. at 555). These pleading requirements shall be set forth in 

separate and discrete paragraphs. “Each allegation must be simple, concise, and direct.” 

F.R.C.P. 8(d)(1). 

 Rivera is further advised that if she fails to prosecute this action or comply with 

the rules or any Court order, the Court may dismiss the action with prejudice pursuant to 

Rule 41(b). See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). 

CONCLUSION 

 Liberally construed, Rivera’s complaint fails to allege facts that state a plausible 

claim for unjust enrichment, age-related hostile work environment, retaliation, age 

discrimination, or race discrimination. 

 IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss (Doc. 9) is 

GRANTED and the case is dismissed without prejudice with leave to amend within 30 

days of the date of this Order. 

IT IS FURTHER ORDERED that if Plaintiff elects not to file an amended 

complaint WITHIN 30 DAYS of the date of this Order, the Clerk of Court shall dismiss 

without prejudice and terminate this action without further Order of the Court. 

 Dated this 30th day of June, 2016. 

Honorable G. Murray Snow

United States District Judge

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