Okeke v. Biomat USA, Inc.

927 F.Supp.2d 1021

Chike OKEKE, an individual, Plaintiff,

v.BIOMAT USA, INC., a Nevada corporation; Grifols Biologicals Inc., a Delaware corporation; Does 1 through 25, inclusive; and Roe Corporations 1 through 25, inclusive, Defendants.

No. 2:12–CV–01251–LRH–VCF.

United States District Court, D. Nevada.

Feb. 25, 2013.

Erica D. Loyd, Altabet & Kang, LLP, Las Vegas, NV, Patrick W. Kang, Kang & Associates, Las Vegas, NV, for Plaintiff.

Ismail Amin, The Amin Law Group NV, Ltd., Las Vegas, NV, Lawrence E. Kulp, Jr., Deaner Deaner Scann Malan & Larsen, Las Vegas, NV, for Defendants.

ORDER

LARRY R. HICKS, District Judge.

This is an employment discrimination suit. Before the court is defendants Biomat USA, Inc. (“Biomat”) and Grifols Biologicals Inc.'s (“Grifols”) Motion to Dismiss (# 9 ¹). Plaintiff Chike Okeke has responded (# 13), and Defendants have replied (# 14). Also before the court is Defendants' Motion to Strike (# 8), to which Okeke has responded (# 12) and Defendants have replied (# 15).

I. Facts and Procedural History²

Okeke began employment with Biomat as an Operations Supervisor in 2009 (Complaint# 1, ¶ 17.) Over the course of his employment, Okeke's supervisors subjected him to unwarranted disciplinary action and ultimately, in 2012, termination. ( Id. at ¶ 23.) This disciplinary action included a written reprimand based on Okeke's “intonation, facial expressions, and non-verbal communication.” ( Id. at ¶ 24.) Okeke also alleges that his supervisors did not take his workplace harassment claims seriously ( id. at ¶ 30) and that he was passed over for raises and promotions while others with lesser qualifications were not ( id. at ¶¶ 34–35). Finally, Okeke claims that Biomat terminated him after it became aware of his complaint with the Equal Opportunity Employment Commission (“EEOC”). ( Id. at ¶¶ 40–42.)

Okeke has lodged eight causes of action against both Biomat and Grifols: (1) national origin discrimination, (2) “public policy tort,” (3) respondeat superior, (4) negligent hiring, supervision, and training, (5) retaliation, (6) Nevada race and national origin discrimination, (7) intentional infliction of emotional distress, and (8) defamation. Following the Defendants' Motion to Dismiss, Okeke did not oppose the motion to dismiss all claims against Grifols. (Okeke's Response # 13, p. 9:21–22.) Therefore, the remaining claims concern only Biomat. And Biomat has moved to dismiss all of them under Federal Rule of Civil Procedure 12(b)(6).

II. Legal Standard

To survive a motion to dismiss for failure to state a claim, a complaint must satisfy the Federal Rule of Civil Procedure 8(a)(2) notice pleading standard. See Mendiondo v. Centinela Hospital Medical Center, 521 F.3d 1097, 1103 (9th Cir.2008). A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The Rule 8(a)(2) pleading standard does not require detailed factual allegations; however, a pleading that offers only “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

Furthermore, Rule 8(a)(2) requires a complaint to “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (internal quotation marks omitted). A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference, based on the court's judicial experience and common sense, that the defendant is liable for the misconduct alleged. See id. at 678–79, 129 S.Ct. 1937. “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. at 678, 129 S.Ct. 1937 (internal quotation marks and citation omitted).

In reviewing a motion to dismiss, the court accepts the facts alleged in the complaint as true. Id. (citation omitted). However, “bare assertions ... amount[ing] to nothing more than a formulaic recitation of the elements of a ... claim ... are not entitled to an assumption of truth.” Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.2009) (quoting Iqbal, 556 U.S. at 680, 129 S.Ct. 1937) (alteration in original) (internal quotation marks omitted). The court discounts these allegations because they do “nothing more than state a legal conclusion—even if that conclusion is cast in the form of a factual allegation.” Id. “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Id. (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937).

III. Discussion

Okeke's Title VII discrimination and retaliation claims, his Nevada discrimination claim, and his defamation and negligent training and supervision claims survive Biomat's Motion to Dismiss. The remaining claims do not.

A. Discrimination on the Basis of National Origin

Okeke has successfully alleged a claim for discrimination on the basis of national origin under Title VII. Under this Title, it is unlawful for an employer to discriminate against an employee on the basis of national origin. 42 U.S.C. § 2000e–2(a). In order to make out a prima facie case of discrimination on the basis of national origin, Okeke must show “(1) he belonged to a protected class; (2) he was qualified for his job; (3) he was subjected to an adverse employment action; and (4) similarly situated employees not in his protected class received more favorable treatment.” Kang v. U. Lim America, Inc., 296 F.3d 810, 818 (9th Cir.2002) (discussing national origin discrimination).

Here, Okeke has successfully established membership in a protected class-people of Nigerian national origin. See id. Furthermore, Okeke has alleged he was an “exemplary” employee, that he completed his master's degree, and that others were less qualified for similar positions (lacking, for example, similar credentials).³ (Complaint # 1 at ¶¶ 19, 35.) Taken together, these allegations are sufficient in light of “judicial experience and common sense” to establish that Okeke was qualified for his job. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. And Okeke has alleged that he was disciplined more often than similarly situated non-Nigerians, that he was denied a raise when others similarly situated were not, and that he was terminated for an infraction when others similarly situated were not terminated for the same infraction. (Complaint # 1 at ¶¶ 23, 34, 38.) These allegations are enough to establish that “similarly situated employees not in his protected class received more favorable treatment.” Kang, 296 F.3d at 818. Therefore, Okeke has made out a prima facie case of discrimination on the basis of national origin.

Biomat argues that Okeke has failed to properly allege exhaustion of his administrative remedies. Okeke has claimed that he “filed his Charges of Discrimination with the [EEOC]” and “received a copy of his ‘Right to Sue’ notice.” (Complaint # 1 at ¶¶ 7–8.) Biomat does not think this is enough, since Okeke did not specify which “Charges of Discrimination” he filed with the EEOC.

The court disagrees. While a lawsuit following the exhaustion of administrative remedies must be “like and reasonably related to” the charges lodged with the EEOC, EEOC v. Farmer Brothers Co., 31 F.3d 891, 899 (9th Cir.1994), the only “reasonable inference” from Okeke's Complaint is that his EEOC charges included national origin discrimination, see Moss, 572 F.3d at 969. Indeed, claims stemming from national origin discrimination are the only claims Okeke brings under Title VII. Thus, Okeke's allegations properly establish that Okeke has exhausted his administrative remedies. 42 U.S.C. § 2000e–5(f)(1).

B. Retaliation

Title VII also prevents actions taken in retaliation for protected activity. To state a prima facie case of retaliation under Title VII, Okeke must show that (1) he engaged in a protected activity, (2) he was subject to an adverse employment action, and (3) there exists a causal link between the protected activity and the employer's action. Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493, 506 (9th Cir.2000). “Protected activities” include the filing of charges with the EEOC. See id. at 506–07. Of course, termination of an at-will employee may constitute an “adverse employment action.” See, e.g., Wilkerson v. New Media Technology Charter School, Inc., 522 F.3d 315, 320 (3d Cir.2008).

Okeke has successfully established the elements of a prima facie case of retaliation under Title VII. Biomat does not dispute that Okeke has properly alleged the first and second elements of the prima facie case. Rather, Biomat argues that Okeke's allegations of causation fail to rise above a legal conclusion. The causal link may be demonstrated inferentially through a combination of the employer's knowledge that the employee engaged in a protected activity and the proximity in time between the protected activity and the adverse employment action. See Jordan v. Clark, 847 F.2d 1368, 1376 (9th Cir.1988). Here, Okeke has alleged facts that give rise to a reasonable inference of causation. First, Okeke's filing of charges with the EEOC served to notify Biomat of Okeke's complaint. See42 U.S.C. § 2000e–5(e)(1). Second, Okeke alleges that he was fired one month after filing these charges. (Complaint # 1 at ¶ 40.) Since these facts together give rise to a reasonable inference of causation, Okeke's retaliation claim survives.

C. Race and National Origin Discrimination...