-RJJ Cohen v. Clark County School District et al, No. 2:2011cv01619 - Document 47 (D. Nev. 2012)

Court Description: ORDER Granting 10 and 17 Motions to Dismiss. Claims for gender based discrimination and intentional/negligent infliction of emotional distress are dismissed. Plaintiffs retaliation claim remains pending against the District. Defendants Brockovich, Garis, Louthan, Richards, Springer, Arguello, and Hoffman are dismissed from the case. Amended Complaint due within 30 days. Signed by Judge Marilyn L. Huff on 6/19/2012. (Copies have been distributed pursuant to the NEF - SLR)

Download PDF

-RJJ Cohen v. Clark County School District et al Doc. 47 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 CYNTHIA KAPPENMAN COHEN, CASE NO. 11-CV-1619-MLH-RJJ Plaintiff, 12 ORDER: (1) GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S CLAIMS FOR GENDER BASED DISCRIMINATION AND INTENTIONAL/NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS; 13 14 15 vs. 16 (2) GRANTING DEFENDANTS’ MOTION TO DISMISS DEFENDANTS BROCKOVICH, GARIS, LOUTHAN, RICHARDS, SPRINGER, ARGUELLO AND HOFFMAN; AND 17 18 19 CLARK COUNTY SCHOOL DISTRICT, et al., 20 Defendants. (3) GRANTING PLAINTIFF THIRTY (30) DAYS TO FILE AN AMENDED COMPLAINT 21 22 23 On January 19, 2012, Plaintiff Cynthia Kappenman Cohen, proceeding pro se, filed an 24 amended complaint alleging four causes of action against Defendants: (1) gender based 25 discrimination and (2) retaliation in violation of Title VII of the Civil Rights Act, (3) 26 intentional infliction of emotional distress, and (4) negligent infliction of emotional distress. 27 (Doc. No. 7 at 30-36.) On February 9, 2012, Defendants Nick Brockovich, Bill Garis, Bill 28 Hoffman, Sherri Louthan, Gina Richards, Faron Springer, and Clark County School District -1- 11cv1619 Dockets.Justia.com 1 filed a motion to dismiss Plaintiff’s claims for gender based discrimination and 2 intentional/negligent infliction of emotional distress. (Doc. No. 10.) On March 7, 2012, 3 Defendant Richard Arguello filed a separate motion to dismiss. (Doc. No. 17.) On April 18, 4 2012, Plaintiff filed an opposition to the motion to dismiss. (Doc. Nos. 25, 26.) On April 30, 5 2012, Defendants filed a reply. (Doc. No. 28.) 6 On June 18, 2012, the Court submitted the motion on the parties’ papers pursuant to 7 Local Rule 78-2. For the following reasons, the Court grants Defendants’ motion to dismiss 8 Plaintiff’s claims for gender based discrimination, intentional infliction of emotional distress, 9 and negligent infliction of emotional distress. In addition, the Court grants Plaintiff thirty (30) 10 days leave to file an amended complaint that corrects the deficiencies noted in this Order. 11 Upon further motion by Plaintiff requesting an additional extension of time, and upon a 12 showing of good cause, the Court may grant Plaintiff an additional thirty (30) days to file an 13 amended complaint due to her scheduled procedure. 14 Defendants did not move to dismiss Plaintiff’s retaliation claim. Therefore, Plaintiff’s 15 retaliation claim remains pending against Defendants. Because individual defendants cannot 16 be liable for Title VII claims, Plaintiff should re-plead her retaliation claim against the Clark 17 County School District (“the District”) if she files an amended complaint. See Holly D. v. Cal. 18 Inst. of Tech., 339 F.3d 1158, 1179 (9th Cir. 2003) (“We have consistently held that Title VII 19 does not provide a cause of action for damages against supervisors or fellow employees.”); 20 Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587-88 (9th Cir. 1993) (“[I]ndividual defendants 21 cannot be held liable for damages under Title VII.”). 22 23 Background Plaintiff is currently employed as a teacher by the District. (Doc. No. 7 at 13.) Plaintiff 24 previously held an administrative position as a dean of students for the District. (Id. at 2.) 25 Plaintiff asserts that she earned her administrative position in connection with a settlement 26 /// 27 /// 28 /// -2- 11cv1619 1 agreement concerning two previous lawsuits that she filed against the District.1 (Id.) Plaintiff 2 contends that she was removed from her administrative position because Defendants 3 discriminated against her based on her gender and because Defendants retaliated against her 4 for filing her two previous lawsuits. (Id.) In this case, Plaintiff brings four causes of action 5 against Defendants: (1) gender based discrimination and (2) retaliation in violation of Title VII 6 of the Civil Rights Act, (3) intentional infliction of emotional distress, and (4) negligent 7 infliction of emotional distress. 8 Defendants collectively seek to dismiss Plaintiff’s claims for gender based 9 discrimination, intentional infliction of emotional distress, and negligent infliction of emotional 10 distress for failure to state a claim for relief. Additionally, Defendant Arguello seeks to be 11 dismissed based on improper service. Plaintiff opposes Defendants’ motion to dismiss. 12 I. Legal Standard for a Motion to Dismiss 13 A motion to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) tests 14 the legal sufficiency of the claims asserted in the complaint. Navarro v. Block, 250 F.3d 729, 15 732 (9th Cir. 2001). The pleading must contain a short and plain statement showing that the 16 pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). This requirement functions to “give the 17 defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell 18 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “While a complaint attacked by a Rule 19 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation 20 to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and 21 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. 22 “All allegations of material fact are taken as true and construed in the light most favorable to 23 plaintiffs. Conclusory allegations of law and unwarranted inferences are insufficient to defeat 24 a motion to dismiss for failure to state a claim.” Epstein v. Washington Energy Co., 83 F.3d 25 1136, 1140 (9th Cir. 1996); see Twombly, 550 U.S. at 555. “To survive a motion to dismiss, 26 27 1 Plaintiff’s two previous suits are Kappenman v. Clark County School District, Case No. 2:99-cv-1059-RLH-PAL (settled in 2003), and Kappenman v. Clark County School 28 District, Case No. 2:07-cv-0890-RLH-PAL (settled in 2008). (Doc. No. 7 at 2.) -3- 11cv1619 1 a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief 2 that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950 (2009). 3 A pro se plaintiff is held to a less stringent pleading standard than represented parties. 4 Jackson v. Carey, 353 F.3d 750, 757 (9th Cir. 2003) (citing Haines v. Kerner, 404 U.S. 519, 5 520-21). “Dismissal of a pro se complaint without leave to amend is proper only if it is 6 absolutely clear that the deficiencies of the complaint could not be cured by amendment.” 7 Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (quoting Schucker v. Rockwood, 8 846 F.2d 1202, 1203-04 (9th Cir. 1988)). “A district court may deny a plaintiff leave to amend 9 if it determines that ‘allegation of other facts consistent with the challenged pleading could not 10 possibly cure the deficiency.’” Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 11 2010) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th 12 Cir. 1986)). 13 “Generally, a district court may not consider any material beyond the pleadings in ruling 14 on a Rule 12(b)(6) motion.” Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 15 1542, 1555 n. 19 (9th Cir. 1990). The court may, however, consider the contents of documents 16 specifically referred to and incorporated into the complaint. Branch v. Tunnell, 14 F.3d 449, 17 454 (9th Cir. 1994) overruled on other grounds by Galbraith v. County of Santa Clara, 307 18 F.3d 1119, 1127 (9th Cir. 2002). 19 II. Plaintiff’s First Cause of Action for Gender Based Discrimination 20 Plaintiff’s first cause of action is for gender based discrimination under the hostile work 21 environment protections of Title VII, 42 U.S.C. § 2000(e). (Doc. No. 7 at 30-32.) Defendants 22 move to dismiss the first cause of action because (1) Plaintiff’s claim allegedly fails as a matter 23 of law, and (2) Plaintiff allegedly failed to exhaust available administrative remedies. 24 /// 25 /// 26 /// 27 /// 28 /// -4- 11cv1619 1 A. Analysis of Plaintiff’s Gender Based Discrimination Claim 2 Under Title VII, it is unlawful for an employer “to discriminate against any individual 3 with respect to [their] compensation, terms, conditions, or privileges of employment, because 4 of . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Harassment in the form of a hostile work environment 5 constitutes sex discrimination. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986). 6 To prevail on a hostile environment claim, a plaintiff must establish a “pattern of ongoing and 7 persistent harassment severe enough to alter the conditions of employment.” Draper v. Coeur 8 Rochester, Inc., 147 F.3d 1104, 1108 (9th Cir. 1998) (citing Meritor, 477 U.S. at 66-67)). To 9 satisfy this requirement, a plaintiff must show that the workplace was “both objectively and 10 subjectively offensive, one that a reasonable person would find hostile or abusive, and one that 11 the [plaintiff] in fact did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787 12 (1998). In addition, the plaintiff must show that the harassment took place “because of sex.” 13 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). 14 The Amended Complaint contains a conclusory statement that Defendants’ gender 15 based discrimination was “sufficiently pervasive and severe so as to create a hostile work 16 environment in violation of Title VII.” (Doc. No. 7 at 30.) But the Amended Complaint does 17 not allege facts that would support discrimination based on Plaintiff’s gender. See Oncale, 18 523 U.S. at 81 (providing that a plaintiff “must always prove that the conduct at issue . . . 19 actually constituted discrimination because of sex”) (internal quotations omitted). Instead, the 20 Amended Complaint alleges that Defendants’ discrimination was “motivated by Plaintiff’s 21 lawsuits against Defendant.” (Doc. No. 7 at 31.) Because the Amended Complaint does not 22 allege any facts showing that Plaintiff received unfavorable treatment from Defendants 23 because of her gender, the Court concludes that the Amended Complaint does not contain 24 sufficient factual matter to state a claim for relief based on gender discrimination. Iqbal, 129 25 S.Ct. at 1950. Accordingly, the Court grants Defendants’ motion to dismiss Plaintiff’s gender 26 based discrimination claim without prejudice. 27 /// 28 /// -5- 11cv1619 1 In addition, the Court grants Plaintiff thirty (30) days leave to amend the complaint to 2 include factual content showing that Defendants discriminated against her based on her gender. 3 Plaintiff’s amended complaint should allege facts that would allow a reasonable person to find 4 that Defendants’ gender based behavior created a hostile and/or abusive workplace. See 5 Faragher, 524 U.S. at 787 (providing that a plaintiff must show the workplace was “both 6 objectively and subjectively offensive, one that a reasonable person would find hostile or 7 abusive, and one that the [plaintiff] in fact did perceive to be so”). 8 Moreover, individual defendants are not proper defendants under a Title VII claim. 9 Holly D., 339 F.3d at 1179 (“We have consistently held that Title VII does not provide a cause 10 of action for damages against supervisors or fellow employees.”); Miller, 991 F.2d at 587-88 11 (“[I]ndividual defendants cannot be held liable for damages under Title VII.”). Therefore, if 12 Plaintiff files an amended complaint, she should not assert a Title VII gender based 13 discrimination claim against individual defendants. 14 B. Analysis of Whether Administrative Remedies Were Exhausted 15 Before a plaintiff may bring a civil action under Title VII, the plaintiff must first 16 exhaust their available administrative remedies by filing a timely discrimination charge with 17 the Equal Employment Opportunity Commission (EEOC) or appropriate state agency. 42 18 U.S.C. § 2000e-5; Lyons v. England, 307 F.3d 1092, 1103 (9th Cir. 2002); B.K.B. v. Maui 19 Police Dep't, 276 F.3d 1091, 1099 (9th Cir. 2002). A federal court may adjudicate claims not 20 explicitly raised in the EEOC complaint if the claim is like or reasonably related to the 21 allegations contained in the EEOC charge. B.K.B., 276 F.3d at 1100; Oubichon v. N. Am. 22 Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973). To determine if an allegation is reasonably 23 related “the court inquires whether the original EEOC investigation would have encompassed 24 the additional charges.” Green v. Los Angeles County Superintendent of Sch., 883 F.2d 1472, 25 1476 (9th Cir. 1989). 26 Defendants argue that Plaintiff did not exhaust the available administrative remedies 27 for her gender based discrimination claim before she filed this lawsuit. In response, Plaintiff 28 asserts that the initial and amended EEOC forms that she filed with the Nevada Equal Rights -6- 11cv1619 1 Commission (NERC) satisfy the exhaustion requirement. (Doc. No. 10 at 15-19, EEOC 2 Forms, Agency Charge Nos. 0923-09-0504L and 34B-2009-01548C.) 3 The initial EEOC form, as filed on September 17, 2009, contains a single charge of 4 discrimination based on retaliation. (Doc. No. 10 at 15-16, EEOC Form 5, Agency Charge No. 5 0923-09-0504L.) Specifically, the initial EEOC form states: “Respondent is retaliating against 6 me because I filed a previous charge of discrimination against them.” (Id.) On July 7, 2012, 7 Plaintiff filed an amended EEOC form that also alleges a single charge of discrimination based 8 on retaliation. (Doc. No. 10 at 18-19, EEOC Form 5, Agency Charge No. 34B-2009-01548C.) 9 Like the initial EEOC form, the amended EEOC form is solely directed to Plaintiff’s retaliation 10 claim. Importantly, the EEOC forms do not indicate that Plaintiff experienced harassment or 11 discrimination based on her gender. Instead, the EEOC forms only address the District’s 12 allegedly retaliative actions against Plaintiff because she had filed previous lawsuits against 13 the District. 14 After reviewing the record, the Court concludes that Plaintiff has not plead facts to 15 show that she exhausted her administrative remedies for her gender based discrimination claim. 16 Neither the Amended Complaint nor the EEOC forms indicate that Plaintiff filed a gender 17 based discrimination charge with the EEOC or NERC. In particular, the EEOC forms do not 18 allege that Plaintiff received unfavorable treatment because of her gender. Therefore, the 19 Court concludes that Plaintiff has not plead facts showing that she exhausted her administrative 20 remedies for her gender based discrimination claim. Lyons, 307 F.3d at 1103 21 (“To establish federal subject matter jurisdiction, a plaintiff is required to exhaust his or her 22 administrative remedies before seeking adjudication of a Title VII claim.”). 23 Furthermore, Plaintiff has not alleged that her gender based claim is like or reasonably 24 related to the retaliation charges in her EEOC forms. The Court notes that Plaintiff’s two other 25 cases against the District contain an allegation that she received unfavorable treatment because 26 of her gender. (Kappenman, Case No. 2:99-cv-1059-RLH-PAL, Doc. No. 1; Kappenman, 27 Case No. 2:07-cv-0890-RLH-PAL, Doc. No. 1.) But Plaintiff has not alleged any facts to 28 show that the history of her prior two cases would cause her present claim for gender based -7- 11cv1619 1 discrimination to be reasonably related to her present claim for retaliation. For example, 2 Plaintiff has not argued that a reasonably thorough investigation by Defendants into her present 3 retaliation claim would have encompassed the gender based claims in her previous lawsuits 4 against the District. See Green, 883 F.2d at 1476 (explaining that an allegation is reasonably 5 related if “the original EEOC investigation would have encompassed the additional charges”). 6 Therefore, the Court concludes that Plaintiff has not plead facts showing that her gender based 7 claim is like or reasonably related to her retaliation claim. As a result, the Court grants 8 Defendants’ motion to dismiss Plaintiff’s claim for gender based discrimination without 9 prejudice. See Lyons, 307 at 1104 (“Incidents of discrimination not included in an EEOC 10 charge may not be considered by a federal court unless the new claims are like or reasonably 11 related to the allegations contained in the EEOC charge.”). 12 The Court grants Plaintiff thirty (30) days leave to amend the complaint. The amended 13 complaint should contain factual allegations sufficient to establish that her claim for gender 14 based discrimination was either administratively exhausted or reasonably related to her 15 retaliation claim. Lyons, 307 F.3d at 1103; B.K.B., 276 F.3d at 1100. Additionally, if Plaintiff 16 files an amended complaint, she should not assert a Title VII gender based discrimination 17 claim against individual defendants. Holly D., 339 F.3d at 1179; Miller, 991 F.2d at 587-88. 18 III. Analysis of Intentional and Negligent Infliction of Emotional Distress Claims 19 Defendants move to dismiss Plaintiff’s claims for intentional and negligent infliction 20 of emotional distress for failure to state a claim for relief. 21 A. Intentional Infliction of Emotional Distress 22 The Nevada Industrial Insurance Act (“NIIA”) provides the exclusive remedy “for an 23 employee on account of an injury by accident sustained arising out of and in the course of the 24 employment.” Nev. Rev. Stat. § 616A.020(1). The Nevada Supreme Court has “recognized 25 that employers do not enjoy immunity, under the exclusive remedy provision of the workers’ 26 compensation statutes, from liability for their intentional torts.” Conway v. Circus Circus 27 Casinos, Inc., 116 Nev. 870, 875 (2000) (quoting Advanced Countertop Design v. Dist. Ct., 28 115 Nev. 268, 270 (1999)). “Simply labeling an employer’s conduct as intentional . . . will not -8- 11cv1619 1 subject the employer to liability outside of workers’ compensation.” Id. An employee must 2 plead facts that establish the employer’s deliberate intent to bring about an injury to the 3 employee in order to state an intentional tort claim. Fanders v. Riverside Resort & Casino, 4 Inc., 245 P.3d 1159, 1163 (2010); Conway, 116 Nev. at 875 (“A bare allegation is not enough. 5 An employee must provide facts in his or her complaint which show the deliberate intent to 6 bring about the injury.”). 7 A claim for intentional infliction of emotional distress requires a showing of: (1) 8 extreme and outrageous conduct by the defendant with the intention of, or reckless disregard 9 for, causing emotional distress, (2) that plaintiff actually suffered severe or extreme emotional 10 distress, and (3) actual or proximate cause. Barmettler v. Reno Air, Inc., 114 Nev. 441, 447 11 (1998). Extreme and outrageous conduct is action that is “outside all possible bounds of 12 decency” and is regarded as “utterly intolerable in a civilized community.” Maduike v. 13 Agency Rent-A-Car, 114 Nev. 1, 4 (1998). 14 The Amended Complaint does not allege facts showing extreme or outrageous behavior 15 by Defendants. For example, Plaintiff indicates that Defendants Springer and Arguello orally 16 reprimanded her for safety issues concerning a school bus. (Id. at 15.) Plaintiff also complains 17 of an investigation into whether she used profane language during a telephone call. (Id. at 16.) 18 The Amended Complaint further states that a report from students led to an investigation into 19 whether Plaintiff acted inappropriately, unprofessionally, and/or derogatorily towards students. 20 (Id. at 18-19.) Plaintiff describes numerous performance evaluations that she received from 21 Defendant Arguello, with each evaluation rating her “culture of learning” as unsatisfactory. 22 The unsatisfactory ratings were based on specific instances of alleged use of inappropriate 23 language during a telephone call (id. at 17-18), inappropriate touching that was unprofessional 24 and/or derogatory towards students (id. at 18-19), inappropriate searching of a student’s person 25 for a cellular phone (id. at 21-22), inappropriate use of language in the presence of students (id. 26 at 23-24), inappropriately reprimanding a campus security monitor in front of staff and 27 students (id. at 25), and permitting students to write inside of student discipline folders (id. at 28 /// -9- 11cv1619 1 26). Plaintiff states that she ultimately received a notice of non-reemployment based on the 2 foregoing instances of alleged misconduct and unsatisfactory evaluations. (Id. at 27-29.) 3 Each of the Defendants’ actions described in the Amended Complaint are a part of 4 personnel management activity. See e.g., Welder v. Univ. S. Nevada, Case No. 2:10-CV5 01811(LRH), 2011 WL 2491057 at *4 (D. Nev. June 21, 2011) (“Personnel management 6 consists of such actions as hiring and firing, project assignments, promotion and demotions, 7 performance evaluations and other similar acts.”). “[P]ersonnel management activity is 8 insufficient to support a claim of intentional infliction of emotional distress.” Id. Therefore, 9 the Court determines that the actions described in the Amended Complaint are insufficient to 10 support Plaintiff’s claim for intentional infliction of emotional distress. As a result, the Court 11 concludes that the Amended Complaint does not state a claim for relief for intentional 12 infliction of emotional distress because the investigations and evaluations conducted by 13 Defendants do not rise to the level of extreme and outrageous conduct. See Maduike, 114 Nev. 14 at 4. Accordingly, the Court grants Defendants’ motion to dismiss the Plaintiff’s claim for 15 intentional infliction of emotional distress without prejudice. The Court grants Plaintiff thirty 16 (30) days leave to amend the complaint to include factual content showing that Defendants’ 17 conduct was extreme and outrageous, and intentionally caused Plaintiff to suffer severe 18 emotional distress. See Barmettler, 114 Nev. at 447. 19 B. Negligent Infliction of Emotional Distress 20 Nevada’s worker’s compensation system provides the sole remedy for an employee’s 21 claim based on allegedly negligent conduct by an employer. Fanders, 245 P.3d at 1164 n. 3; 22 Conway, 116 Nev. at 875. A claim for negligent infliction of emotional distress is therefore 23 preempted by Nevada’s workers’ compensation statute. Id. 24 Plaintiff brings a cause of action for negligent infliction of emotional distress against 25 Defendants. The Amended Complaint alleges that Plaintiff suffered “severe and/or extreme 26 distress” that gave rise “to physical manifestation of injury.” (Doc. No. 7 at 36.) But 27 Plaintiff’s claim for negligent infliction of emotional distress is preempted by Nevada’s 28 workers’ compensation statute. Fanders, 245 P.3d at 1164 n. 3 (“Because [plaintiff’s] - 10 - 11cv1619 1 negligence claims alleged negligent conduct, they would be covered by the NIIA, which would 2 be [her] sole remedy as to those claims.”). Therefore, Plaintiff’s exclusive remedy for her 3 negligent infliction of emotional distress claim is provided by the workers’ compensation 4 system. Accordingly, the Court grants Defendants’ motion to dismiss Plaintiff’s cause of 5 action for negligent infliction of emotional distress with prejudice. 6 IV. Dismissal of Individual Defendants Nick Brockovich, Bill Garis, Sherri Louthan, 7 Gina Richards, Faron Springer, and Richard Arguello 8 Plaintiff brought suit against a number of individual Defendants: Nick Brockovich, Bill 9 Garis, Sherri Louthan, Gina Richards, Faron Springer, and Richard Arguello. (Doc. No. 7 at 10 1.) Individual defendants are not proper defendants under a Title VII claim. Holly D., 339 11 F.3d at 1179 (“We have consistently held that Title VII does not provide a cause of action for 12 damages against supervisors or fellow employees.”); Miller, 991 F.2d at 587-88 (“[I]ndividual 13 defendants cannot be held liable for damages under Title VII.”). Plaintiff’s sole remaining 14 claim for retaliation is brought under Title VII. Therefore, the Court dismisses Defendants 15 Brockovich, Garis, Louthan, Richards, Springer, and Arguello from Plaintiff’s Title VII claims 16 with prejudice. 17 V. Dismissal of Defendant Hoffman 18 Under Ninth Circuit precedent, a government attorney is immune from damage liability 19 for performing acts associated with civil litigation. Fry v. Melarango, 939 F.2d 832, 837 (9th 20 Cir. 1991) (“Whether the government attorney is representing the plaintiff or the defendant, 21 or is conducting a civil trial, criminal prosecution or an agency hearing, absolute immunity is 22 ‘necessary to assure that . . . advocates . . . can perform their respective functions without 23 harassment or intimidation.”) (quoting Butz v. Economou, 438 U.S. 478, 512 (1978)). In 24 addition, the Ninth Circuit determined that “arbitrators are immune from civil liability for acts 25 within their jurisdiction arising out of their arbitral functions in contractually agreed upon 26 arbitration hearings.” Wasyl, Inc. v. First Boston Corp., 813 F.2d 1579, 1582 (9th Cir. 1987). 27 A district court must follow the binding precedent of its appellate court. In re Osborne, 76 28 F.3d 306, 309 (9th Cir. 1996). - 11 - 11cv1619 1 Defendant Carl W. (“Bill”) Hoffman, Jr. was formerly general counsel for the District. 2 (Doc. No. 7 at 4.) During his tenure as general counsel for the District, Defendant Hoffman 3 was involved in settlement conferences with Plaintiff in her two previous cases against the 4 District. (Id.) Defendant Hoffman is no longer employed by the District; he is currently 5 employed as a magistrate judge within the Nevada federal district court. As the District’s 6 general counsel, Defendant Hoffman represented the District’s interests in Plaintiff’s two 7 previous suits that settled in 2003 and 2008. (Doc. No. 7 at 4.) Under Fry, Defendant 8 Hoffman is immune from liability for representing the District in the two previous suits. Fry, 9 939 F.2d at 837. 10 In 2010, Defendant Hoffman served as a mediator between the District and Plaintiff 11 in a non-binding Step 2 grievance process in accordance with the collective bargaining 12 agreement between the District and the association of school administrators. (Doc. Nos. 7 at 13 6-7; 10 at 26-27.) A Step 2 hearing is a preliminary, non-binding union grievance mechanism. 14 (Doc. No. 10 at 26, “Negotiation Agreement between the Clark County School District and the 15 Clark County Association of School Administrators and Professional-technical Employees.”) 16 Mediators are immune from civil liability for acts within their jurisdiction arising out of their 17 mediation functions in contractually agreed upon mediation hearings. Wasyl, 813 F.2d at 18 1582. Therefore, Defendant Hoffman is immune from civil liability for acting as a mediator 19 between the District and Plaintiff under Wasyl. Accordingly, the Court concludes that 20 Defendant Hoffman is immune from liability in this action under binding Ninth Circuit 21 precedent established in Fry and Wasyl. Fry, 939 F.2d at 837; Wasyl, 813 F.2d at 1582. 22 Defendant Hoffman is also immune from liability for Plaintiff’s sole remaining claim for 23 retaliation. Holly D., 339 F.3d at 1179; Miller, 991 F.2d at 587-88. As a result, the Court 24 dismisses Defendant Hoffman Plaintiff’s Tile VII claims with prejudice. 25 /// 26 /// 27 /// 28 /// - 12 - 11cv1619 1 VI. Motion to Dismiss for Improper Service 2 Federal Rule of Civil Procedure 4 provides that the plaintiff is responsible for serving 3 a copy of the summons and complaint upon the defendant. Fed. R. Civ. P. 4. An individual 4 defendant may be personally served with a copy of the summons and complaint, or a copy of 5 each may be left with a person of suitable age at the individual’s residence, or a copy of each 6 may be delivered to an authorized agent. Fed. R. Civ P. 4(e)(2).2 A court’s jurisdiction over 7 a defendant is acquired through proper service of process. SEC v. Ross, 504 F.3d 1130, 1138 8 (9th Cir. 2008) (stating that “service of process is the means by which a court asserts its 9 jurisdiction over the person”); see also Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986) (“A 10 federal court is without personal jurisdiction over a defendant unless the defendant has been 11 served in accordance with Fed. R. Civ. P. 4.”). 12 A defendant may bring a motion to dismiss based on insufficient service of process. 13 Fed. R. Civ. P. 12(b)(5). When a defendant challenges the sufficiency of service of process, 14 the plaintiff bears the burden of establishing valid service. Brockmeyer v. May, 383 F.3d 798, 15 801 (9th Cir. 2004) (“Once service is challenged, plaintiffs bear the burden of establishing that 16 service was valid under Rule 4.”). Generally, if proper service did not occur, a court may 17 quash service and require plaintiff to effectuate proper service. S.J. v. Issaquah School Dist. 18 No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006) (stating “the district court has discretion to 19 dismiss an action or to quash service”) (citing Stevens v. Security Pac. Nat’l Bank, 538 F.2d 20 1387, 1389 (9th Cir. 1976)). 21 Defendant Arguello challenges the sufficiency of Plaintiff’s service of process. Mr. 22 Arguello states that someone came to his residence on February 25, 2012 and left papers on 23 his porch while his wife was home. (Doc. No. 17, Ex. 1., Affidavit of Mr. Arguello.) Mr. 24 Arguello states that his wife did not accept the papers and that he did not pick up the papers 25 or see the papers. (Id.) Mr. Arguello states that there were no papers on his porch when he 26 27 2 Federal Rule 4 also allows for service that complies with state law. Fed. R. Civ. P. 4(e)(1). Nevada’s service requirements for an individual mirror Federal Rule 4(e)(2). See 28 Nev. R. Civ. P. 4(d)(6). - 13 - 11cv1619 1 left his residence on February 27, 2012. (Id.) Mr. Arguello contends that he was not 2 personally served with the papers left on his porch under Rule 4. As a result, Mr. Arguello 3 argues that this Court does not have jurisdiction over him because he was not properly served. 4 The Court concluded that Defendant Arguello is not a proper defendant under Title VII 5 for Plaintiff’s discrimination claims. See Holly D., 339 F.3d at 1179 (“We have consistently 6 held that Title VII does not provide a cause of action for damages against supervisors or fellow 7 employees.”); Miller, 991 F.2d at 587-88 (“[I]ndividual defendants cannot be held liable for 8 damages under Title VII.”). The Court also dismissed Plaintiff’s claims for intentional and 9 negligent infliction of emotional distress for failure to state a claim for relief. Iqbal, 129 S.Ct. 10 at 1950. For these reasons, the Court dismissed Defendant Arguello from this action. As a 11 result, the Court concludes that Defendant Arguello’s service of process challenge is moot. Conclusion 12 13 Based on the foregoing, the Court grants Defendants’ motion to dismiss the first cause 14 of action for gender based discrimination without prejudice, and grants Defendants’ motion 15 to dismiss the third cause of action for intentional infliction of emotional distress without 16 prejudice. See Weilburg, 488 F.3d at 1205 (“Dismissal of a pro se complaint without leave 17 to amend is proper only if it is absolutely clear that the deficiencies of the complaint could not 18 be cured by amendment.”). 19 The Court grants Defendants’ motion to dismiss the fourth cause of action for negligent 20 infliction of emotional distress with prejudice. See Telesaurus, 623 F.3d at 1003 (“A district 21 court may deny a plaintiff leave to amend if it determines that allegation of other facts 22 consistent with the challenged pleading could not possibly cure the deficiency.”) (internal 23 quotations omitted). Plaintiff’s claim for negligent infliction of emotional distress is 24 preempted by Nevada’s workers’ compensation statute. Fanders, 245 P.3d at 1164 n. 3. 25 Therefore, Plaintiff cannot cure the deficiency in her negligence claim. In addition, the Court 26 grants Defendants’ motion to dismiss Defendants Brockovich, Garis, Louthan, Richards, 27 Springer, Arguello, and Hoffman from Plaintiff’s Title VII claims with prejudice because 28 /// - 14 - 11cv1619 1 individual defendants cannot be liable for Title VII claims. See Holly D., 339 F.3d at 1179; 2 Miller, 991 F.2d at 587-88. 3 The Court grants Plaintiff thirty (30) days leave to file an amended complaint that 4 addresses the deficiencies noted in this Order concerning the claims dismissed without 5 prejudice. Upon further motion by Plaintiff requesting an additional extension of time, and 6 upon a showing of good cause, the Court may grant Plaintiff an additional thirty (30) days to 7 file an amended complaint due to her upcoming procedure. 8 Defendant has not moved to dismiss Plaintiff’s retaliation claim. Therefore, Plaintiff’s 9 retaliation claim remains pending against the District. Because individual defendants cannot 10 be liable for Title VII claims, Plaintiff should re-plead her retaliation claim against the District 11 if she files an amended complaint. See Holly D., 339 F.3d at 1179; Miller, 991 F.2d at 587-88. 12 IT IS SO ORDERED. 13 DATED: June 19, 2012 14 ______________________________ 15 MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT 16 17 18 19 20 21 22 23 24 25 26 27 28 - 15 - 11cv1619

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.