Schulman v. Wynn Las Vegas LLC et al, No. 2:2012cv01494 - Document 17 (D. Nev. 2012)

Court Description: ORDER Granting 10 Defendant's Motion to Dismiss. IT IS FURTHER ORDERED that the Clerk shall enter judgment and close the case. Signed by Chief Judge Robert C. Jones on 10/19/2012. (Copies have been distributed pursuant to the NEF - AC)

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Schulman v. Wynn Las Vegas LLC et al Doc. 17 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 JEFFREY MARTIN SCHULMAN, 9 Plaintiff, 10 vs. 11 WYNN LAS VEGAS, LLC et al., 12 Defendants. 13 ) ) ) ) ) ) ) ) ) ) 2:12-cv-01494-RCJ-GWF ORDER 14 This case arises out of alleged employment discrimination on the basis of Plaintiff’s 15 diabetes. Pending before the Court is Defendants’ motion to dismiss. For the reasons given 16 herein, the Court grants the motion. 17 I. 18 FACTS AND PROCEDURAL HISTORY Plaintiff Jeffrey Schulman is an employee at Wynn Las Vegas Hotel and Casino 19 (“Wynn”). (Compl. ¶ 1, Aug. 22, 2012, ECF No. 1). He began work with Wynn on or about 20 November 14, 2008 as a night shift security officer, at which time he disclosed to Wynn his type 21 I diabetes. (Id. 10). Schulman’s diabetes requires him occasionally to check his blood sugar and 22 eat, and he applied for a day shift position because of unspecified difficulties with managing his 23 diabetes during the night shift. (See id. ¶¶ 12–13). Schulman gave a doctor’s note to his 24 supervisor, Jeff Jackson (who forwarded the note to Assistant Director of Security Tony 25 Wilmont), indicating that a day shift would assist in managing his diabetes in an unspecified Dockets.Justia.com 1 way. (See id. ¶¶ 16–18). Schulman identifies the transfer to a day shift as the “reasonable 2 accommodation” for his diabetes he requested under the Americans with Disabilities Act 3 (“ADA”). (See id. ¶ 17). Although Jackson told Schulman he was ninth on the list for transfer to 4 the day shift, and although Employee Relations employee Lucy Vitaro and Executive Director of 5 Security Marty Lethitien told Schulman at a December 1, 2009 meeting that he would be 6 transferred to the day shift in January 2010, he was never transferred to the day shift. (See id. 7 ¶¶ 14–15, 20–21). On November 23, 2009, Wynn had disciplined Schulman for falling asleep on 8 the job. (Id. ¶ 23). This may have been what led to the December 1, 2009 meeting. Wynn 9 disciplined Schulman again for falling asleep on the job on February 14, 2010. (Id.). Schulman 10 alleges that his blood sugar was 439 (either before or after he fell asleep on February 14, 2010), 11 but Jackson refused to believe his diabetes was the cause. (See id.). Eventually, Wynn suspended 12 Schulman without pay, pending an investigation. (Id. ¶ 27). After a month, Wynn informed 13 Schulman that he would not be permitted to return as a security officer, but that he could apply 14 for other positions. (Id. ¶¶ 28–29). 15 After Schulman filed a charge of discrimination, Wynn rehired him as an “assistant shift 16 manager for public areas,” which position did not provide as many opportunities for overtime as 17 the position of security officer did, although the hourly pay was not lower. (See id. ¶ 34). The 18 position was again for the night shift, and Wynn refused his request to be placed on the day shift. 19 (Id. ¶¶ 35). After three months, Schulman experienced low blood sugar of 38, which led Wynn 20 to suspend him for one week; Schulman does not allege the actual cause of the suspension, but 21 presumably he fell asleep or had to leave his post. (See id. ¶ 36). Wynn told Schulman he would 22 have to sign a “release” to return to his position, but he refused. (Id. ¶ 37). Wynn then provided 23 Schulman a position in retail, making less money. (Id. ¶ 38). 24 25 Schulman filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). After the EEOC rejected the charge, Schulman sued three Wynn Page 2 of 7 1 entities in the Court on four causes of action under the ADA: (1) discrimination; (2) requirement 2 of a pre-employment medical examination; (3) failure to accommodate; and (4) implementation 3 of impermissible standards, criteria, and methods of administration. Defendants have moved to 4 dismiss for failure to file suit within ninety days of receiving the right-to-sue letter. 5 II. LEGAL STANDARDS 6 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 7 claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of 8 what the . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 9 (1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action 10 that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule 11 12(b)(6) tests the complaint’s sufficiency. See N. Star Int’l v. Ariz. Corp. Comm’n, 720 12 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for 13 failure to state a claim, dismissal is appropriate only when the complaint does not give the 14 defendant fair notice of a legally cognizable claim and the factual grounds upon which it rests. 15 See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint 16 is sufficient to state a claim, the court will take all material allegations as true and construe them 17 in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th 18 Cir. 1986). The court, however, is not required to accept as true allegations that are merely 19 conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden 20 State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action 21 with conclusory allegations is not sufficient; a plaintiff must plead facts pertaining to his own 22 case making a violation plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 677–79 23 (2009) (citing Twombly, 550 U.S. at 556) (“A claim has facial plausibility when the plaintiff 24 pleads factual content that allows the court to draw the reasonable inference that the defendant is 25 liable for the misconduct alleged.”). In other words, under the modern interpretation of Rule Page 3 of 7 1 8(a), a plaintiff must not only specify a cognizable legal theory (Conley review), but also must 2 plead the facts of his own case so that the court can determine whether the plaintiff has any 3 plausible basis for relief under the legal theory he has specified, assuming the facts are as he 4 alleges (Twombly-Iqbal review). 5 “Generally, a district court may not consider any material beyond the pleadings in ruling 6 on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the 7 complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard Feiner 8 & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, “documents 9 whose contents are alleged in a complaint and whose authenticity no party questions, but which 10 are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) 11 motion to dismiss” without converting the motion to dismiss into a motion for summary 12 judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule 13 of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay 14 Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court 15 considers materials outside of the pleadings, the motion to dismiss is converted into a motion for 16 summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 17 2001). 18 III. 19 ANALYSIS Wynn argues that Schulman failed to sue within ninety days of receiving his right-to-sue 20 letter (“RTS”). See 42 U.S.C. § 2000e-5(f)(1). Schulman filed the present lawsuit on August 22, 21 2012, ninety days after May 24, 2012. The RTS letter form the EEOC is dated May 18, 2012. 22 The limitations period begins to run on the date the claimant receives the letter at his address of 23 record. Payan v. Aramark Mgmt. Servs., Ltd., 495 F.3d 1119, 1122 (9th Cir. 2007). Where the 24 date is unknown, there is a rebuttable presumption the letter was mailed on the date it was issued 25 and that it was received three days later. Id. at 1123. In this case, the presumption is therefore Page 4 of 7 1 that Schulman received the RTS on May 21, 2012, making the Complaint untimely. Wynn’s 2 counsel, which represented Wynn before the EEOC, received a copy of the RTS at its Las Vegas 3 address on May 21, 2012. (See Abbott Aff. ¶ 4, Sept. 14, 2012, ECF No. 10-1, at 7). 4 In response, Schulman attempts to rebut the three-day presumption. He attests that he 5 received the RTS on May 24, 2012. (See Schulman Aff. ¶ 2, Oct. 1, 2012, ECF No. 13, Ex. 1). 6 He attests as to having written down the date of receipt at the time of receipt because the letter 7 was not sent certified. (See id. ¶ 3). Schulman also attaches the affidavit of Cary Schulman, his 8 pro hac vice attorney, but that affiant only attests that Schulman contacted him when Schulman 9 received the RTS and that Schulman alleged to have made a record of it; he does not attest as to 10 direct knowledge of the date of receipt. (See Cary Schulman Aff. ¶ 3, Oct. 1, 2012, ECF No. 13, 11 Ex. 2). 12 In reply, Defendants argue that Schulman has not rebutted the three-day presumption 13 because his only evidence is his own self-serving affidavit and his suspicious alleged notation 14 upon receipt, neither of which were alleged in his Complaint but only after Defendants moved to 15 dismiss for failure to file suit within ninety days. Defendants adduce proof that the EEOC’s 16 letter to Defendants’ counsel at their Las Vegas address was both dated and postmarked May 18, 17 2012. (See Mot. Dismiss Ex. 1, ECF No. 10-1). Schulman’s copy of the RTS letter received at 18 his Las Vegas address, which he adduces, is also dated May 18, 2012. (See Resp. Ex. 1-A, ECF 19 No. 13). This is sufficient evidence for Defendants to support the presumption that the letter 20 Schulman admits he received was mailed on May 18, 2012, the date the letter was issued. See 21 Payan, 495 F.3d at 1123. Schulman provides no evidence that the copy of the letter he received 22 was postmarked on a different date. (See id.). Although not all postal carriers are equally 23 efficient, Plaintiff must provide more than his own self-interested affidavit to support an 24 anomalous three-day difference in delivery to addresses in the same city. In this case, May 21, 25 2012 was a Monday, and the 24th was a Thursday. The possible three-day difference in delivery Page 5 of 7 1 is very unlikely under these circumstances, as opposed to a situation where two of the three days 2 could be accounted for by a weekend, meaning a difference of only one postal service working 3 day. Unlike in cases where the three-day presumption has been rebutted, Plaintiff has provided 4 no corroborating evidence of poor or inconsistent mail service at his residence, see Coleman v. 5 Potomac Elec. Power Co., 310 F. Supp. 2d 154, 157–58 (D.D.C. 2004), or that the date on his 6 copy of the EEOC’s letter was different than that on Defendant’s copy, see, e.g., Roberts v. 7 Nevada ex rel. Dep’t of Conservation & Natural Res., Div. of State Parks, No. 3:05-cv-00459- 8 RAM, 2008 WL 3925084, at *7 (D. Nev. Aug. 20, 2008). The self-interested affidavit and note 9 are insufficient to rebut the presumption: 10 Here, Payan has offered insufficient evidence to rebut the three-day presumption. Although Payan suggested that “[the notice letter] could have been delayed” and that “[she’d] gotten mail that’[d] been delayed before ... [s]ometimes about a week,” none of these comments are sufficiently definite, without corroborating evidence, to conclude that the right-to-sue letter arrived more than three days after issuance by the EEOC. Payan also suggested that “[m]any reasonable and logical reasons exist [ ] why ... the EEOC may not have mailed the right-to-sue notice until [after] September 29.” However, Payan’s unsupported conjectures are insufficient to suggest delayed receipt. Accord Cook v. Providence Hosp., 820 F.2d 176, 178-179 & n. 3 (6th Cir. 1987) (“[The petitioner’s] denials are not sufficient to support a reasonable conclusion that the letter was not received.”). 11 12 13 14 15 16 Payan, 495 F.3d 1126–27. In summary, Schulman has not rebutted the presumption that he 17 received the RTS on May 21, 2012. The limitation period therefore ran on August 19, 2012, 18 three days before Plaintiff filed suit, and the Complaint is untimely. 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// Page 6 of 7 1 CONCLUSION 2 IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 10) is GRANTED. 3 IT IS FURTHER ORDERED that the Clerk shall enter judgment and close the case. 4 IT IS SO ORDERED. 5 Dated this 11th day ofof October, 2012. 19th day October, 2012. 6 7 _____________________________________ ROBERT C. JONES United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 7 of 7

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