-VCF Duncan v. Rio Hotel & Casino, No. 2:2012cv00565 - Document 11 (D. Nev. 2012)
Court Description: ORDER Granting in part and Denying in part 6 Defendants' Motion to Dismiss Complaint. Signed by Judge Miranda M. Du on 11/15/2012. (Copies have been distributed pursuant to the NEF - SLD)
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-VCF Duncan v. Rio Hotel & Casino Doc. 11 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 RYAN N. DUNCAN, Case No. 2:12-cv-00565-MMD-VCF Plaintiff, 10 ORDER v. 11 12 RIO SUITE HOTEL & CASINO, et al., (Def.’s Motion to Dismiss – dkt. no. 6) Defendants. 13 14 15 I. SUMMARY 16 Before the Court is Defendants Rio Suite Hotel and Casino (“the Rio”) and 17 Caesars Entertainment, Inc.’s (“Caesars”) (collectively “Defendants”) Motion to Dismiss 18 Plaintiff’s Complaint for lack of subject matter jurisdiction and failure to state a claim 19 upon which relief can be granted. (Dkt. no. 6.) After considering Plaintiff’s opposition 20 and Defendants’ reply, the Court grants in part and denies in part the Motion. 21 II. 22 23 BACKGROUND This case arises out of alleged employment discrimination. Plaintiff’s complaint alleges the following facts: 24 Plaintiff began work at the Rio as a paper hanger, painter, and dry waller on 25 November 23, 2009. (Dkt. no. 1 at ¶ 8.) Around February 2010, Plaintiff and another co- 26 worker openly attempted to unionize their fellow employees. (Id. at ¶ 10.) Near the end 27 of 2010, Plaintiff was required to complete an “Anonymous Annual Survey” (“Survey”) 28 about his supervisor, Shawn Santana. (Id. at ¶ 11.) The Survey identified Plaintiff by his Dockets.Justia.com 1 Employee ID and the last two letters of his last name. (Id.) Within 3 weeks of 2 completing the Survey, Santana confronted Plaintiff about the contents of the Survey. 3 On or about June 16, 2011, Plaintiff underwent surgery to repair his shoulder. 4 (Dkt. no. 1 at ¶ 13.) Plaintiff’s physician required Plaintiff to spend at least 11 weeks 5 recuperating, and to return to work no earlier than September 2011. 6 Plaintiff’s leave of absence authorization approved 10.5 weeks of leave. (Id.) In August 7 2011, Plaintiff’s supervisor ordered Plaintiff to report to work or risk having his 8 employment terminated. (Id. at ¶ 15.) Plaintiff returned to work in August 2011, two 9 weeks before the doctor’s recommended date of return. (Id.) Plaintiff was not provided 10 (Id. at ¶ 14.) with any special accommodations for his surgically repaired shoulder. (Id.) 11 After he returned to work, Santana and Plaintiff’s other supervisor, Steven 12 Magula, repeatedly harassed, demeaned, and called Plaintiff derogatory slurs. (Dkt. no. 13 1 at ¶ 16, 17.) In November 2011, Plaintiff was again required to complete another 14 Survey. (Id. at ¶ 19.) In the November Survey, Plaintiff described the harassment by 15 Santana and Magula and disclosed the presence of mold in the facility. (Id. at ¶ 19.) On 16 December 14, 2011, Magula threatened Plaintiff about the contents of the November 17 Survey. (Id. at ¶ 21.) Plaintiff complained to management about the harassment and 18 disclosed the presence of mold and its accompanying health concerns, but no action 19 was taken to remedy either. (Id. at ¶ 21.) 20 On December 15, 2011, Plaintiff was accused of smoking marijuana during a 21 break and was ordered to be drug tested. (Dkt. no. 1 at ¶ 22.) Plaintiff waited at the 22 facility for an extended time but was not given the test. (Id.) Plaintiff waited until after 23 his shift would have ended before leaving the testing facility. (Id.) On December 23, 24 2011, Plaintiff was informed he was being terminated for failure to take a drug test. (Id. 25 at ¶ 23.) Plaintiff alleges that he was, in fact, terminated in retaliation for his attempt to 26 unionize workers, complaints about harassment, and disclosure of mold in the 27 workplace. 28 /// 2 1 On March 13, 2012, Plaintiff filed a charge of Discrimination and Retaliation with 2 the Nevada Equal Rights Commission (“NERC”) alleging retaliation and discrimination 3 on account of his race and sex. (Dkt. nos. 1 at ¶ 24 and 6-1 at 3.) On March 23, 2012, 4 Plaintiff filed a Charge of Discrimination with the U.S. Equal Employment Opportunity 5 Commission (“EEOC”) alleging race, sex, and retaliation discrimination. (Dkt. no. 6-1 at 6 3.) On March 27, 2012, Plaintiff received a Right to Sue Letter from the EEOC. (Dkt. no. 7 1 at ¶ 25.) 8 Plaintiff filed this Complaint on April 5, 2012, asserting four claims based upon 9 multiple legal theories. Claim 1 alleges wrongful termination under Title VII, NRS 10 Chapter 613, the Genetic Information Nondiscrimination Act (“GINA”), the Age 11 Discrimination in Employment Act (“ADEA”), and the Americans with Disabilities Act 12 (“ADA”) based upon Plaintiff’s temporary disability, attempts to unionize fellow workers, 13 comments in the Survey, and disclosure of mold in the workplace. Claim 2 alleges 14 hostile work environment under Title VII and NRS Chapter 613 based upon “homosexual 15 remarks,” racial slurs, retaliation, and Plaintiff’s attempts to unionize fellow workers, 16 complaints about harassment, and disclosure of mold in the workplace. Claim 3 alleges 17 disability discrimination under Title VII and NRS Chapter 613 based upon Defendants’ 18 failure to provide accommodations after Plaintiff’s shoulder surgery. Claim 4 alleges 19 retaliation under Title VII and NRS Chapter 613 based upon Plaintiff’s attempts to 20 unionize fellow workers, statements in the Surveys, disclosure of mold, and disability. Defendants move to dismiss Plaintiff’s Complaint under Fed. R. Civ. P. 12(b)(1) 21 22 and 12(b)(6). 23 III. DISCUSSION 24 A. Legal Standard 25 Rule 12(b)(1) of the Federal Rules of Civil Procedure allows defendants to seek 26 dismissal of a claim or action for a lack of subject matter jurisdiction. Dismissal under 27 Rule 12(b)(1) is appropriate if the complaint, considered in its entirety, fails to allege 28 facts on its face that are sufficient to establish subject matter jurisdiction. In re Dynamic 3 1 Random Access Memory (DRAM) Antitrust Litig., 546 F.3d 981, 984-85 (9th Cir. 2008). 2 Although the defendant is the moving party in a motion to dismiss brought under Rule 3 12(b)(1), the plaintiff is the party invoking the court’s jurisdiction. As a result, the plaintiff 4 bears the burden of proving that the case is properly in federal court. McCauley v. Ford 5 Motor Co., 264 F.3d 952, 957 (9th Cir. 2001) (citing McNutt v. General Motors 6 Acceptance Corp., 298 U.S. 178, 189 (1936)). 7 A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which 8 relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide 9 “a short and plain statement of the claim showing that the pleader is entitled to relief.” 10 Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While 11 Rule 8 does not require detailed factual allegations, it demands “more than labels and 12 conclusions” or a “formulaic recitation of the elements of a Claim.” Ashcroft v. Iqbal, 556 13 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual 14 allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. at 15 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual 16 matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 17 (internal citation omitted). 18 In Iqbal, the Supreme Court clarified the two-step approach district courts are to 19 apply when considering motions to dismiss. First, a district court must accept as true all 20 well-pled factual allegations in the complaint; however, legal conclusions are not entitled 21 to the assumption of truth. Iqbal, 556 U.S. at 678. Mere recitals of the elements of a 22 Claim, supported only by conclusory statements, do not suffice. Id. Second, a district 23 court must consider whether the factual allegations in the complaint allege a plausible 24 claim for relief. Id. at 679. A claim is facially plausible when the plaintiff’s complaint 25 alleges facts that allow the court to draw a reasonable inference that the defendant is 26 liable for the alleged misconduct. Id. at 678. Where the complaint does not permit the 27 court to infer more than the mere possibility of misconduct, the complaint has “alleged— 28 but it has not shown—that the pleader is entitled to relief.” Id. (internal quotation marks 4 1 omitted). A complaint must contain either direct or inferential allegations concerning “all 2 the material elements necessary to sustain recovery under some viable legal theory.” 3 Twombly, 550 U.S. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 4 1106 (7th Cir. 1989) (emphasis in original)). When the claims in a complaint have not 5 crossed the line from conceivable to plausible, the complaint must be dismissed. 6 Twombly, 550 U.S. at 570. 7 The Court also notes the well-established rule that pro se complaints are subject 8 to “less stringent standards than formal pleadings drafted by lawyers” and should be 9 “liberally construed.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). Rule 12(b)(1) – Lack of Subject Matter Jurisdiction 10 B. 11 Defendants argue that Plaintiff has failed to exhaust his administrative remedies 12 with respect to his claims regarding disability, age, and genetic information 13 discrimination, as well as on his state law claims. Additionally, Defendants argue that 14 any claims relating to termination based on union activity are preempted by the National 15 Labor Relations Act (“NLRA”). Thus, Defendants argue that the Court does not have 16 jurisdiction over any of Plaintiff’s claims. 17 Defendants’ exhaustion argument should properly be framed as a Rule 12(b)(6) 18 challenge to Plaintiff’s Complaint, rather than an attack on this Court’s jurisdiction to hear 19 the suit. Defendants have, perhaps unknowingly, stumbled upon an area of “persistent 20 procedural confusion that has bedeviled the courts of appeals.” Trs. of Screen Actors 21 Guild-Producers Pension and Health Plans v. NYCA, Inc., 572 F.3d 771, 775 (9th Cir. 22 2009) (ERISA claim). Even if Plaintiff failed to exhaust his administrative remedies with 23 respect to some of his claims, “[i]t is a cardinal principle of federal ‘arising under’ 24 jurisdiction that any non-frivolous assertion of a federal claim suffices to establish federal 25 question jurisdiction, even if that claim is later dismissed on the merits.” Id. (quoting 26 Cement Masons Health & Welfare Trust Fund for N. Cal. v. Stone, 197 F.3d 1003, 1008 27 (9th Cir. 1999)). 28 /// 5 1 In the context of employment discrimination, the Supreme Court has held that a 2 timely filing of an administrative remedy with the EEOC “is not a jurisdictional 3 prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is 4 subject to waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc., 5 455 U.S. 385, 393 (1982). Thus, “[p]ursuit of administrative remedies is a condition 6 precedent to a Title VII claim. The requirement, however, is not jurisdictional.” Temengil 7 v. Trust Territory of Pac. Islands, 881 F.2d 647, 654 (9th Cir. 1989) (citing id.). 8 Notwithstanding courts’ offhanded description of Title VII administrative exhaustion as a 9 jurisdictional prerequisite to a suit,1 the Court properly analyzes these arguments under 10 Fed. R. Civ. P. 12(b)(6).2 11 However, Defendants’ NLRA pre-emption argument is properly construed as a 12 challenge to this Court’s jurisdiction. 29 U.S.C. § 157 provides employees with the right 13 “to self-organization, to form, join, or assist labor organizations, to bargain 14 collectively . . . , and to engage in other concerted activities for the purpose of collective 15 bargaining or other mutual aid or protection, . . . .” 16 coercion of employees in the exercise of those rights is an unfair labor practice. Id. at § 17 158(a)(1). Any discharge motivated by an employee’s engagement in protected 18 concerted activities amounts to a violation of § 158(a)(1) and is an unfair labor practice. 19 Fun Striders, Inc. v. NLRB, 686 F.2d Any interference, restraint, or 659, 663 (9th Cir. 1981). 20 21 22 23 24 25 26 27 28 See, e.g., B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099 (9th Cir. 2002); EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994). 1 2 The distinction between a Rule 12(b)(1) and 12(b)(6) dismissal is not merely an error in form, however. While some exhaustion in some federal statutes has been held to be a jurisdictional requirement, see, e.g., Jerves v. United States, 966 F.2d 517, 521 (9th Cir. 1992) (Federal Tort Claims Act), it is not so in other arenas like employment discrimination. Consequently, federal subject matter jurisdiction cannot be waived or equitably skirted in cases like this one, whereas administrative exhaustion may be subject to a host of exceptions depending upon the statute giving rise to a claim. See, e.g., Josephs v. Pac. Bell, 443 F.3d 1050, 1061 (9th Cir. 2005) (discussing exception to exhaustion requirement when EEOC misleads a plaintiff). In these circumstances, that a federal court may nonetheless hear a claim not formally exhausted implies that exhaustion is not jurisdictional. See Zipes, 455 U.S. at 396-98 (discussing cases where the Court considered the merits of arguments regarding administrative remedies). 6 1 The National Labor Relations Board (“NLRB”) has primary exclusive jurisdiction 2 over all claims arising from unfair labor practices. San Diego Building Trades Council v. 3 Garmon, 359 U.S. 236, 244-45 (1959). 4 Here, assuming as true the facts alleged in the Complaint, Plaintiff’s discharge 5 was motivated, initially and at least in part, by his efforts to unionize his fellow 6 employees, amounting to an unfair labor practice and a discharge in violation of § 7 158(a)(1). 8 practices rests with the NLRB, this Court does not have subject matter jurisdiction over 9 any claims arising out of Plaintiff’s efforts to form a union. Thus, to the extent that 10 Plaintiff’s claims are based on efforts to unionize fellow workers, Plaintiff’s first, second, 11 and fourth claims are dismissed. As primary exclusive jurisdiction over claims arising from unfair labor Rule 12(b)(6) – Failure to State a Claim 12 C. 13 After concluding that Plaintiff has demonstrated subject matter jurisdiction on his 14 remaining non-NLRB claims, the Court turns to address the remaining claims under Rule 15 12(b)(6). 16 17 Failure to Exhaust Administrative Remedies – ADA, ADEA and GINA 18 To the extent plaintiff attempts to bring Title VII, ADA, ADEA, or GINA claims, he 19 must first have exhausted his administrative remedies. See Josephs v. Pac. Bell, 443 20 F.3d 1050, 1061 (9th Cir. 2006) (plaintiff must file administrative charge before filing ADA 21 suit in federal court); Lyons v. England, 307 F.3d 1092, 1103 (9th Cir. 2002) (“a plaintiff 22 is required to exhaust his or her administrative remedies before seeking adjudication of a 23 Title VII claim”); Sanchez v. Pac. Powder Co., 147 F.3d 1097, 1099 (9th Cir. 1998) 24 (same for ADEA claims); 29 C.F.R. § 1635.10 (new regulation adopted for GINA claims, 25 incorporating, 26 discrimination statutes). Exhaustion of administrative remedies requires that the 27 complainant file a timely charge with the EEOC, thereby allowing the agency time to 28 /// 1. by reference, administrative 7 exhaustion requirement from other 1 investigate the charge. See 42 U.S.C. § 12117(a); 29 U.S.C. § 626(d); 42 U.S.C. § 2 2000ff-6. 3 In assessing whether a claim was brought before the EEOC, “[i]ncidents of 4 discrimination not included in an EEOC charge may not be considered by a federal court 5 unless the new claims are like or reasonably related to the allegations contained in the 6 EEOC charge.” Green v. Los Angeles Cnty. Superintendent of Sch., 883 F.2d 1472, 7 1475-76 (9th Cir. 1989) (internal quotation marks omitted). Additionally, the district court 8 may only hear charges that are “within the scope of an EEOC investigation that 9 reasonably could be expected to grow out of the allegations.” Leong v. Potter, 347 F.3d 10 1117, 1121 (9th Cir. 2003). A plaintiff's claims are reasonably related to allegations in 11 the charge “to the extent that those claims are consistent with the plaintiff’s original 12 theory of the case,” as reflected in the plaintiff’s factual allegations and his assessment 13 as to why the employer’s conduct is unlawful. B.K.B., 276 F.3d at 1100. The court 14 construes the EEOC charges “‘with utmost liberality since they are made by those 15 unschooled in the technicalities of formal pleading.’” B.K.B., 276 F.3d at 1100 (citing 16 Kaplan v. Int’l Alliance of Theatrical & Stage Emps., 525 F.2d 1354, 1359 (9th Cir. 17 1975)). 18 Where a claim before the district court is made based on a protected class, 19 theory, or statute different from the basis of the claim before the EEOC, the claim is not 20 like or reasonably related to the EEOC charge allegations. For example, in Leong v. 21 Potter, the court held that the plaintiff’s charge with the EEOC asserting race based 22 discrimination was not reasonably related to his later claimed Rehabilitation Act disability 23 claim. Leong, 347 F.3d at 1122. Because the disability claim relied on a different theory 24 and statute, and because the EEOC charge would not have led the agency to suspect 25 that he was disabled, the plaintiff failed to exhaust his administrative remedies relating to 26 his disability. Id. 27 /// 28 /// 8 1 Plaintiff argues that because he has alleged the same facts in both the EEOC 2 Charge and the Complaint, the claims here are “like or reasonably related to” the 3 allegations made before the EEOC and within the same scope of an EEOC investigation 4 reasonably growing out of the allegations. Thus, Plaintiff offers his EEOC Right to Sue 5 Letter to argue he has exhausted his administrative remedies. The Court disagrees. 6 Plaintiff has not alleged the same facts in the EEOC Charge and his Complaint. 7 The EEOC Charge only refers to race and sex as the basis for the discrimination and 8 retaliation. Notably, boxes for disability, age, and genetic information are unmarked. 9 Like Leong, Plaintiff’s Complaint relies on a different theory (disability, age, and genetic 10 information discrimination) and different statutes (ADA, ADEA, GINA) than in the EEOC 11 Charge. For example, Plaintiff’s EEOC Charge alleges “numerous objectionable and 12 offensive comments (‘Howly’ and ‘Stupid Ass White Boy’).” (Dkt. no. 6-1 at 3.)3 Plaintiff 13 continues that he “was discriminated against due to [his] Race-White, [his] Sex-Male, 14 and retaliated against.” There is no mention of a disability, age, or genetic information 15 discrimination; nothing would have led the EEOC to suspect that he alleged 16 discrimination based upon these other protected statuses. Further, disability, age, and 17 genetic information discrimination are so different from the alleged race, sex, and 18 retaliation alleged in the EEOC Charge that they cannot reasonably be like or related to 19 Plaintiff’s EEOC Charge. Even construed liberally, Plaintiff’s EEOC Charge contains no 20 description of the discrimination aside from the checked boxes; thus, Plaintiff's new 21 claims for disability, age, and genetic information discrimination are not reasonably 22 related to allegations in the Charge. 23 In sum, Plaintiff has administratively exhausted remedies relating to his race and 24 sex discrimination claims. However, Plaintiff has failed to exhaust his administrative 25 remedies in connection with the disability, age, and genetic information discrimination 26 27 28 Plaintiff’s EEOC Charge appears to refer to the NERC Charge for a description of the circumstances of alleged discrimination. (Dkt. no. 6-1 at 2.) The Court treats the NERC language as being incorporated by reference within the EEOC Charge. 9 3 1 claims. Therefore, Plaintiff’s first, third, and fourth claims are dismissed to the extent that 2 they relate to disability, age, and genetic information discrimination claims. 2. 3 Failure to Exhaust Administrative Remedies – NRS Chapter 613 4 Any claims arising under Nevada employment antidiscrimination statutes must be 5 administratively exhausted prior to seeking redress in the district courts. Palmer v. State 6 Gaming Control Bd., 787 P.2d 803, 804 (Nev. 1990). “An employee claiming 7 discrimination under NRS 613.420 is obligated to file a claim with NERC and to have that 8 agency adjudicate the claim before it can properly be brought in district court.”4 Id. 9 (emphasis added); Copeland v. Desert Inn Hotel, 673 P.2d 490 (Nev. 1983). 10 Here, Plaintiff argues that because the EEOC Charge includes the same 11 allegations giving rise to the Nevada law claims, he has exhausted his remedies as to 12 his state law claims. However, while Plaintiff’s Complaint alleges that he filed a charge 13 with NERC on March 13, 2012, the Complaint fails to allege that NERC adjudicated his 14 claims or provided a right to sue letter. 15 administrative remedies with respect to claims arising under NRS 613. Plaintiff’s first, 16 second, third, and fourth claims are dismissed to the extent they relate to violations of 17 NRS 613. 3. 18 Plaintiff has similarly failed to exhaust his Claim 1 – Discrimination Based on Termination 19 Under Title VII, to establish a prima facie case of discrimination, Plaintiff must 20 allege that (1) he belongs to protected class, (2) he was performing according to the 21 employer’s legitimate expectations, (3) he was terminated, and (4) other employees with 22 similar qualifications were treated more favorably. Godwin v. Hunt-Wesson, Inc., 150 23 F.3d 1217, 1220 (9th Cir. 1998). 24 25 26 27 28 For the reasons discussed above, Nevada’s anti-discrimination statutes also contemplate administrative exhaustion as a requirement on the merits, not a jurisdictional requirement. See Pope v. Motel 6, 114 P.3d 277, 280 (Nev. 2005) (“In light of the similarity between Title VII of the 1964 Civil Rights Act5 and Nevada's antidiscrimination statutes, we have previously looked to the federal courts for guidance in discrimination cases.”); Palmer v. State, 787 P.2d 803, 804-05 (Nev. 1990) (excusing failure to exhaust remedies with NERC because of excessive agency delay). 10 4 1 The Complaint alleges that Plaintiff was discharged because he complained of 2 racial slurs in the Survey and because he disclosed mold in the workplace. 3 accepting these allegations as true, the challenged acts are not connected to Plaintiff’s 4 protected status as a Caucasian male. More importantly, the Complaint does not allege 5 any facts to satisfy the second and fourth elements of Plaintiff’s prima facie case. 6 Plaintiff’s first claim for discrimination alleging termination based race and gender is 7 dismissed. 8 4. Even Claim 2 - Hostile Work Environment 9 Under Title VII, to properly plead a hostile work environment claim, Plaintiff must 10 allege “(1) that [he] was subjected to verbal or physical conduct based on” his Title VII 11 protected status; “(2) that the conduct was unwelcome; and (3) that the conduct was 12 sufficiently severe or pervasive to alter the conditions of [his] employment and create an 13 abusive work environment.” Galdamez v. Potter, 415 F.3d 1015, 1023 (9th Cir. 2005) 14 (internal quotations omitted). 15 Plaintiff’s allegations that he was subjected to a hostile work environment 16 because he disclosed mold in the workplace does not show that he was discriminated 17 against based on any class afforded protection under Title VII (race, color, religion, sex, 18 sexual orientation, gender identity or expression, age, disability or national origin). Thus, 19 as to the mold disclosure hostile work environment claim, Plaintiff has not stated a claim 20 for relief under Title VII. 21 However, Plaintiff has adequately alleged the elements of a race or sex based 22 hostile work environment claim and has stated sufficient facts to make this claim for relief 23 plausible. Plaintiff alleges he was subjected to verbal abuse based on sex and race, 24 both of which are Title VII protected classes. 25 management via the Survey show the conduct was unwelcome. Last, assuming all 26 alleged facts as true, the conduct was plausibly severe and pervasive enough to alter 27 the conditions of his employment and create an abusive work environment. Thus, this 28 claim survives dismissal. 11 Additionally, his complaints to 5. 1 Claim 4 - Retaliation 2 Under Title VII, to properly plead retaliation, Plaintiff must allege that (1) he acted 3 to protect his Title VII rights, (2) he suffered an adverse employment action, and (3) a 4 causal link exists between these two events. Steiner v. Showboat Operating Co., 25 5 F.3d 1459, 1464 (9th Cir. 1994). 6 First, Plaintiff’s allegations of retaliation based on complaints of racial slurs in the 7 Survey demonstrate that Plaintiff is a member of a Title VII protected class and was 8 acting to protect those rights by opposing discriminatory practices by his supervisors. 9 Second, Plaintiff has adequately alleged that he suffered an adverse employment action 10 in that he was terminated. Last, Plaintiff has adequately alleged a causal link between 11 his complaints and his termination. Thus, Plaintiff’s claim of retaliation because of the 12 complaints contained in the Surveys survives dismissal. 13 IV. CONCLUSION 14 In sum, the only remaining claims for adjudication are the second claim for hostile 15 work environment under Title VII and the fourth claim for retaliation under Title VII 16 because of the complaints of race and sex based comments contained in the Surveys. 17 18 19 IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss Plaintiff’s Complaint is GRANTED in part and DENIED in part. DATED THIS 15th day of November 2012. 20 21 22 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 12
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