Long v. Las Vegas Valley Water Dist., Case No. 2:15-CV-210 JCM (VCF)

MELVIN LONG, Plaintiff(s), v. LAS VEGAS VALLEY WATER DISTRICT, et al., Defendant(s).

Case No. 2:15-CV-210 JCM (VCF)

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

October 1, 2015

ORDER

Presently before the court is a motion to dismiss filed by defendant Las Vegas Valley Water District ("LVVWD"). (Doc. # 8). Plaintiff Melvin Long ("Long") filed a response in opposition (doc. # 15), and defendant filed his reply, (doc. # 19).

I. Background

In this case, plaintiff was employed by defendant from July of 2006 until June of 2014, (doc. # 8 at 1), when he was dismissed as part of a Reduction in Force ("RIF"). (Doc. # 8 at 2). Plaintiff alleges that he was wrongfully terminated due to his age, which was 58 at the time, (doc. # 8 at 2), and in retaliation for participating in a protected activity by giving testimony in an investigation of a supervisor's discriminatory conduct. (Doc. # 15 at 2).

Long filed a claim with the Equal Employment Opportunity Commission ("EEOC") in October of 2014, stating that he was laid off because of his age. (Doc. # 8-1 at 2). He was issued a right-to-sue letter on November 12, 2014. (Doc. # 8 at 2).

On February 5, 2015, Long filed a complaint alleging eight claims for relief: (1) discrimination in violation of N.R.S. 613.330; (2) discrimination in violation of 42 U.S.C. § 2000e-3(a) (Title VII); (3) intentional infliction of emotional distress; (4) negligent infliction of emotionaldistress; (5) violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623, et seq.; (6) breach of contract; (7) breach of covenant of good faith and fair dealing; and (8) vicarious liability. (Doc. # 1).

Defendant's motion seeks dismissal of six of Long's causes of action, arguing that some are legally deficient and others lack sufficient factual allegations to state a claim upon which relief can be granted. (Doc. # 8).

II. Legal Standard

A court may dismiss a plaintiff's complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide "[a] short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

"Factual allegations must be enough to rise above the speculative level." Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (citation omitted).

In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 678-79. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id.

Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff's complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678.

Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has "alleged - but it has not shown - that the pleader is entitled to relief." Id. at 679 (internal quotations omitted). When the allegations in a complaint have notcrossed the line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570.

The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The Starr court held,

First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.

Id.

III. Discussion

Defendant LVVWD seeks dismissal of six claims in Long's complaint. The merits of each claim are addressed in turn.

A. Retaliation in violation of 42 U.S.C. § 2000e-3(a)

An employee seeking relief under Title VII must exhaust his administrative remedies prior to bringing suit. See 42 U.S.C. § 2000e-5 ("If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission . . . [the Commission] shall notify the person aggrieved and . . . a civil action may be brought against the respondent named in the charge . . . by the person claiming to be aggrieved by the alleged unlawful employment practice."); Vinieratos v. U.S., Dep't of Air Force Through Aldridge, 939 F.2d 762, 767-68 (9th Cir. 1991) (citing Brown v. General Servs. Admin., 425 U.S. 820, 832, 96 S.Ct. at 1961, 1965 (1976)). When an employee fails to exhaust his administrative remedies under Title VII, the district court lacks jurisdiction. Blank v. Donovan, 780 F.2d 808, 809 (9th Cir. 1986).

Finally, "[f]iling a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 386, 102 S. Ct. 1127, 1129, 71 L. Ed. 2d 234 (1982).

Defendant first requests that the court dismiss plaintiff's second cause of action for retaliation in violation of 42. U.S.C. § 2000e-3(a) because he has failed to exhaust hisadministrative remedies as to this claim. (Doc. # 8 at 3). Specifically, defendant states that the plaintiff's charge of discrimination fails to allege "retaliation for participation in an investigation," nor did the plaintiff select the option for "retaliation" in his charge of discrimination to the EEOC. (Id.).

In response, plaintiff states that his "failure to check the pre-printed box for "retaliation" does [sic] not warrant dismissal of his Title VII claim." (Doc. # 15 at 6). Plaintiff further argues that this issue is not ripe for dismissal because "whether retaliation should have been included in a reasonable investigation of Long's EEOC charge is not an issue that may be decided" during this motion to dismiss. Williams v. Packaging Corporation of America, 2007 WL 1482383, at *3 (M.D. Ga. 2007) (holding that it could not ascertain whether certain allegations would have be included in an investigation of the plaintiff's EEOC charge).

Title VII prohibits an employer from discriminating against an employee "because he has opposed any practice [prohibited] 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).

To bring a claim for retaliation in violation of Title VII, a plaintiff must prove "(1) that he engaged in a protected activity, (2) that he suffered an adverse employment decision, and (3) that there was a causal link between plaintiff's activity and the employment decision." Lyons v. England, 307 F.3d 1092, 1118 (9th Cir. 2002) (citing Hashimoto v. Dalton, 118 F.3d 671, 679 (9th Cir. 1997)).

"The specific claims made in district court ordinarily must [first] be presented to the EEOC." Leong v. Potter, 347 F.3d 1117, 1122 (9th Cir. 2003) (citing Albano v. Schering-Plough Corp., 912 F.2d 384, 385 (9th Cir.1990)). "However, the district court has jurisdiction over any charges of discrimination that are "like or reasonably related to" the allegations made before the EEOC, as well as charges that are within the scope of an EEOC investigation that reasonably could be expected to grow out of the allegations." Leong, 347 F.3d at 1122 (citing Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990)).

When considering whether plaintiff has sufficiently exhausted his administrative remedies, while it is true that "[a] court should look not just to a checked box," Norton v. PHC-Elko, Inc., 46 F. Supp. 3d 1079, 1090 (D. Nev. 2014), the court must also consider whether the charges are "within the scope of an EEOC investigation that reasonably could be expected to grow out of the allegations." Leong, 347 F.3d at 1122 (citing Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990)). For example, in Green v. Los Angeles Cnty. Superintendent of Sch., the Ninth Circuit noted that an investigation of plaintiff's EEOC charge regarding race and sexual discrimination while employed "would not encompass her subsequent claims that she was . . . ultimately discharged because of her race and sex." 883 F.2d 1472, 1476 (9th Cir. 1989).

Here, plaintiff's charge of discrimination with the EEOC stated that he believed he was terminated because of his age, and that the reason given for his termination was a reduction in force. (Doc. # 8-1 at 2). Specifically, plaintiff's charge alleges that other older workers were laid off at the same time as him, he believes he was discriminated against because of his age, and that "others as a class have been subjected to age discrimination." (Id.) The charge of discrimination makes no mention of Long's participation in a protected activity, nor does it mention that he suffered from discriminatory or retaliatory behavior as a result of his participation in an investigation against his supervisor.

As with the plaintiff in Green, the EEOC investigation of Long's allegations of unlawful...