-CWH Jones v. Las Vegas Valley Water District et al, No. 2:2012cv00282 - Document 35 (D. Nev. 2012)

Court Description: ORDER Granting 9 Defendants Lee Brewer, Las Vegas Valley Water District, Patricia Maxwell, Frank Milligan, Pat Mulroy, Juan Sanjurjo, Alan Schmidt, and Gary Wessell's Motion to Dismiss and Request to Deem Plaintiff a Vexatious Litigant. IT I S FURTHER ORDERED that Plaintiff is BARRED from asserting Title VII complaints against employees in their individual capacities without prior permission of the Court. IT IS FURTHER ORDERED that 22 Defendant Hyman Walker's Motion to Dismiss is GRANTED. All other outstanding motions are DENIED AS MOOT. Clerk of Court shall enter judgment for Defendants and against Plaintiff. Signed by Judge Kent J. Dawson on 7/11/12. (Copies have been distributed pursuant to the NEF - EDS)

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-CWH Jones v. Las Vegas Valley Water District et al Doc. 35 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 TERRIS R. JONES SR., 11 Plaintiff, 12 v. 13 Case No. 2:12-CV-000282-KJD-CWH LAS VEGAS VALLEY WATER DISTRICT, et al., ORDER 14 Defendants. 15 16 17 Presently before the Court is the Motion to Dismiss and Request to Deem Plaintiff a 18 Vexatious Litigant of Defendants, Lee Brewer, Las Vegas Valley Water District, Patricia Maxwell, 19 Frank Milligan, Pat Mulroy, Juan Sanjurjo, Alan Schmidt, Gary Wessell (collectively “Defendants”) 20 (#9). Plaintiff Terris Jones filed a response in opposition (#11) to which Defendants replied (#16). 21 Plaintiff then filed a surreply (#17). 22 23 24 25 Additionally, before the Court is the Motion to Dismiss of Defendant Hyman Walker (“Walker”) (#22). Plaintiff filed a response (#24) to which Walker replied (#26). Also, before the Court is Plaintiff’s Motion for Judgment on the Pleadings (#13). Defendants filed a response in opposition (#19) to which Plaintiff replied (#21). 26 Dockets.Justia.com 1 I. Background and Procedural History 2 Plaintiff is currently a security officer at Las Vegas Valley Water District (“LVVWD”), 3 where he has been employed since February 2007. On May 31, 2011 Plaintiff filed a charge of 4 discrimination with the Equal Employment Opportunity Commission (“EEOC”). The EEOC 5 assigned the matter to charge number 487-2010-00905 that was already open and concerned many of 6 the same parties. On June 8, 2011 the EEOC sent correspondence to Plaintiff notifying him of the 7 mistake and informed Plaintiff that going forward the charge number would be 487-2011-00822. 8 According to the allegations of the complaint, on October 27, 2011 a new LVVWD Security 9 Daily Work Schedule was posted in three different locations. The schedule listed Richard Fox 10 (“Fox”) as the Lead Security Officer (“LSO”). Plaintiff brought the schedule to Gary Wessell 11 (“Wessell”), Alan Schmidt, and Frank Milligan (“Milligan”). LVVWD rescinded the schedule. 12 Although the Court did not consider these facts in resolving the Motion to Dismiss, 13 Defendants in response assert that on November 9, 2011 Plaintiff emailed Wessell about a newly 14 posted LVVWD Security Daily Work Schedule, asking whether security officer Richard Fox should 15 have been assigned the Lead Security Officer (“LSO”) on the graveyard shift. Wessell responded to 16 the email clarifying that there was no LSO on the graveyard shift and the schedule was corrected. 17 That same day, Milligan also responded to Plaintiff’s email informing Plaintiff the revised schedule 18 was published. Although Wessell and Milligan attempted to fix the mistake, Plaintiff sent a 19 “Complaint for Harassment, Negligent, [and] Negligent Intentional Infliction of Emotional Distress” 20 to LVVWD Human Resources. 21 On December 2, 2011, Plaintiff sent a letter to the Las Vegas Local Office of the EEOC 22 requesting a right to sue letter. On December 23, 2011, Plaintiff received a notice of right to sue from 23 the EEOC, which the EEOC rescinded on January 11, 2012. On February 6, 2012 Plaintiff again 24 sought a response from the EEOC. On February 22, 2012, Plaintiff filed the present Complaint for 25 Damages alleging five causes of action. 26 2 1 A. First Cause of Action 2 Plaintiff alleges LVVWD, Pat Mulroy (“Mulroy”), and Patricia Maxwell (“Maxwell”) 3 “intentionally, politically, conspiring behavior denied [P]laintiff his rights when they negated their 4 responsibility to respond to [P]laintiff’s complaint(s) filed with Human Resources on May 16, 2011 5 and November 14, 2011.” 6 B. Second Cause of Action 7 Plaintiff alleges Defendants and Walker were “negligent,” “discriminative,” “retaliative” 8 [sic], “conspirators,” and “[abused] their authority to intentionally intimidate and/or inflict emotional 9 distress on [P]laintiff” when Defendants and Walker “breached the written contract between 10 [P]laintiff and LVVWD, which said that LVVWD is an ‘Equal Opportunity Employer.’” 11 C. Third Cause of Action 12 Plaintiff alleges he received an email on May 10, 2011, from Wessell advising Plaintiff that 13 he must complete a mandatory “Utility Cart Operation Training.” Plaintiff contends Wessell “knew 14 or should have known that [P]laintiff had already complied with the training regulation, this email 15 from Wessell was harassment to [P]laintiff.” Additionally, Plaintiff alleges that his Utility Cart 16 Training Evaluation Form was falsified and he is “the only Security Officer treated this way.” 17 D. Fourth Cause of Action 18 Plaintiff alleges that Wessell and Juan Sanjurjo “negated their responsibilities to [P]laintiff, 19 in that they excluded and isolated [P]laintiff from normal and routine department functions.” Plaintiff 20 contends this has created a hostile work environment and Defendants and Walker did this in 21 retaliation after Plaintiff filed an EEOC Charge. 22 E. Fifth Cause of Action 23 Plaintiff alleges on October 27, 2011 he was physically, mentally, and emotionally impacted 24 when a “LVVWD Security Daily Work Schedule” listed Richard Fox as the LSO. 25 // 26 // 3 1 II. Motion to Dismiss 2 A. Legal Standard for Motion to Dismiss 3 Pursuant to Fed. R. Civ. P. Rule 12(b)(6), “failure to state a claim upon which relief can be 4 granted,” is basis to dismiss a complaint. FRCP 12(b)(6). “To survive a motion to dismiss, a 5 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 6 plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. 7 Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that 8 the plaintiff has pleaded facts, which allow “the court to draw the reasonable inference that the 9 defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation illustrates a two-prong 10 analysis. First, the Court identifies “the allegations in the complaint that are not entitled to the 11 assumption of truth,” that is, those allegations which are legal conclusions, bare assertions, or merely 12 conclusory. Id. at 1949–51. Second, the Court considers the factual allegations “to determine if they 13 plausibly suggest an entitlement to relief.” Id. at 1951. If the allegations state plausible claims for 14 relief, such claims survive the motion to dismiss. Id. at 1950. 15 B. Title VII Claims 16 Title VII states, “[i]t shall be unlawful employment practice for an employer (1) to fail or 17 refuse to hire or to discharge any individual with respect to his compensation, terms, conditions, or 18 privileges of employment, because of such individual’s race… or (2) to limit, segregate, or classify 19 his employees or applicants for employment in any way which would deprive or tend to deprive any 20 individual of employment opportunities or otherwise adversely affect his status as an employee, 21 because of such individuals race…” 42 U.S.C. § 2000E(2)(a)(1)-(2). For Title VII purposes, 22 employer is defined as a “person engaged in an industry affecting commerce who has fifteen or more 23 employees…” Id. at § 2000E(b). To seek relief under Title VII, a plaintiff must exhaust his 24 administrative remedies by filing a Charge with the EEOC or corresponding state agency before 25 filing suit. 42 U.S.C. § 2000e(5)(b). 26 4 1 1. Claims Against Individuals 2 Title VII claims can only be asserted against employers, not upon individual 3 employees. Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587-88 (9th Cir. 1993). Even if Plaintiff 4 seeks relief based on a state tort law, he cannot plead around Title VII’s ban on individual liability. 5 See Christion v. Nevada Public Works Board, 2009 WL 1407990 (D. Nev. 2009). Here, Plaintiff 6 raises claims against individual LVVWD employees in each cause of action. It is undisputed that 7 Plaintiff’s causes of action allege a retaliatory or discriminatory act under Tile VII. Accordingly, the 8 claims against individual employees are dismissed. 9 2. Failure to Exhaust Administrative Remedies 10 In order for a plaintiff to assert claims that do not appear in the EEOC Charge, the 11 plaintiff must demonstrate that the new claims are like or reasonably related to the allegations of 12 those in the EEOC Charge. Green v. Los Angeles County Superintendent of Sch., 883 F.2d 1472, 13 1475-76 (9th Cir. 1989). If the allegations are not like or reasonably related the court should not 14 consider them. Id. 15 LVVWD argues that Plaintiff’s first, second, and fifth causes of action contain new 16 allegations from the EEOC Charge and should not be considered by the Court. Plaintiff’s EEOC 17 Charge raised the issues of retaliatory exclusion from workplace activities, being questioned about 18 his completed training, and the alleged presence of a hostile work environment. 19 i. First Cause of Action 20 Plaintiff alleges LVVWD, Mulroy, and Maxwell “negated their responsibility 21 to respond to [P]laintiff’s complaint(s) filed with Human Resources on May 16, 2011 and November 22 14, 2011.” The claim contains specific individuals and dates and the incidents occurred after Plaintiff 23 filed the EEOC Charge. Because the claim is not related to the claims within the Charge, the first 24 cause of action is dismissed. 25 // 26 // 5 1 ii. Second Cause of Action 2 Plaintiff alleges eight individuals “[abused] their authority to intentionally 3 intimidate and/or inflict emotional distress on [P]laintiff” when Defendants and Walker breached 4 LVVWD’s written contract with Plaintiff. However, the EEOC charge does not mention an existence 5 of contract between Plaintiff and the LVVWD. Accordingly, the second cause of action is dismissed. 6 iii. Fifth Cause of Action 7 Plaintiff alleges he was physically, mentally and emotionally impacted from a 8 typographical error on the LVVWD Security Daily Work Schedule. This allegation is also a specific 9 incident occurring after the EEOC Charge and is not related. Accordingly, the fifth cause of action is 10 dismissed. Even if the Court were to find that any one of the three charges are related to the EEOC 11 Charge, the Court would still dismiss the claims, see infra. 12 3. Race Discrimination 13 To claim employment discrimination under Title VII a plaintiff has the burden of 14 showing: (1) membership in a protected group; (2) qualification for the job in question; (3) an 15 adverse employment action; and (4) circumstances supporting an inference of discrimination. 16 McDonnell Douglas Corp. v. Green, 411 US 792, 37 L Ed 2d 668, 93 Ct 1817 (1973). 17 Only non-trivial employment actions that deter reasonable employees from 18 complaining about Title VII violations constitute adverse employment actions. Brooks v. City of San 19 Mateo, 229 F. 3d 917, 928 (9th Cir. 2000). These types of actions include termination, dissemination 20 of negative employment reference, issuance of a negative performance review or a refusal to consider 21 an employee for promotion. Id. An action other than a termination or demotion requires some kind of 22 meaningful change in work assignment. See Lyons v. England, 307 F.3d 1092, 1118 (9th Cir. 2002). 23 Additionally, an employer’s action must be “final or lasting” to be considered an adverse 24 employment action. Id. at 929-930. 25 26 The parties do not dispute that Plaintiff is a member of a protected group and is qualified for the job. However, LVVWD argues that Plaintiff has not suffered any final or lasting 6 1 adverse employment action. Plaintiff has not alleged that he lost his position, was demoted, failed to 2 receive a due promotion, had his rate of pay changed or had any of his benefits of employment at 3 LVVWD altered. Finally, Plaintiff’s only reference to racial discrimination is found in his EEOC 4 Charge where the box “RACE” is checked under the section labeled “DISCRIMINATION BASED 5 ON.” 6 i. First Cause of Action 7 Plaintiff alleges that LVVWD failed to take action in connection with 8 Plaintiff’s May 16, 2011 and November 14, 2011 complaints. Even if the allegation is true, Plaintiff 9 does not identify how the failure to act was an adverse employment action. Further, Plaintiff has not 10 demonstrated how LVVWD’s decision to not act caused him harm. Plaintiff had at his disposal, and 11 took advantage of, his right to file a Charge of Discrimination with the EEOC. Therefore, this claim 12 is dismissed, because it is not an adverse employment action. 13 ii. Second Cause of Action 14 Plaintiff alleges that LVVWD was negligent, discriminative, retaliative [sic], 15 intimidating and did not treat other employees the same way as Plaintiff. Plaintiff’s allegations are 16 conclusory and do not state that an adverse employment action occurred. Therefore, this claim is 17 dismissed. 18 iii. Third Cause of Action 19 Plaintiff alleges that an email from Wessell improperly identified that Plaintiff 20 had not yet completed his “Utility Cart Operation Training” and the training form was later falsified. 21 However, as Plaintiff alleges, the mistake was corrected and Plaintiff does not allege that he was 22 subject to an adverse employment action. Therefore, this claim is dismissed. 23 iv. Fourth Cause of Action 24 Plaintiff alleges exclusion and isolation from work meetings. Because this 25 allegation does not constitute a significant change in employment status it is insufficient to form the 26 basis for an adverse employment action and is dismissed. 7 1 v. Fifth Cause of Action 2 Plaintiff alleges that the LSO position appearing on the posted LVVWD 3 Security Daily Work Schedule impacted him physically, mentally and emotionally. As Plaintiff 4 alleges, LVVWD rescinded the schedule listing the LSO position. Plaintiff has not alleged the 5 incident was a final or lasting employment action. Therefore, Plaintiff’s race discrimination claim is 6 dismissed. 7 4. Racial Harassment/Hostile Work Environment 8 To establish an actionable claim for hostile work environment a plaintiff must prove: 9 “(1) that he or she was subjected to verbal or physical conduct of a harassing nature, (2) that the 10 conduct was unwelcome, and (3) that the conduct was sufficiently severe or pervasive to alter the 11 conditions of [Plaintiff’s] employment and create an abusive working environment.” Pavon v. Swift 12 Transp. Co. Inc., 192 F.3d 902, 908 (9th Cir. 1999) (citing Meritor Savings Bank, FSB v. Vinson, 477 13 U.S. 57, 67, 106 S. Ct. 2399, 91 L.Ed.2d 49 (1986)). Courts have held that the conduct must involve 14 “discriminatory intimidation, ridicule, [and/or] insult.” Id. An employer will be liable for harassment 15 by a co-worker if the employer does not exercise reasonable care to prevent the harassing behavior. 16 See Faragher v. City of Boca Raton, 524 U.S. 775, 807-8 (1998). 17 Plaintiff alleges LVVWD employees conspired to create a hostile work environment 18 when they discriminated against Plaintiff based on his race. However, Plaintiff’s only reference to 19 racial discrimination is found in the checked box on his EEOC Charge. Plaintiff only offers 20 conclusory allegations, that LVVWD subjected him to verbal or physical conduct of a harassing 21 nature, and that the conduct was sufficiently severe or pervasive to alter the conditions of Plaintiff’s 22 employment and create an abusive working environment. Accordingly, Plaintiff’s hostile work 23 environment claims are dismissed. 24 5. Retaliation 25 To establish a claim of retaliation Plaintiff must show that “(1) he engaged in a 26 protected activity; (2) his employer subjected him to an adverse employment action; and (3) a causal 8 1 link exists between the protected activity and the adverse action.” Ray v. Henderson, 217 F. 3d 1234, 2 1240 (9th Cir. 2000). Here, it is undisputed that Plaintiff engaged in a protected activity by making a 3 Charge of Discrimination to the EEOC. However, Plaintiff has not adequately alleged that he was 4 subject to an adverse employment action after he filed the EEOC Charge. Accordingly, Plaintiff’s 5 retaliation claim is dismissed. 6 6. 42 U.S.C. §§ 1981, 1983 Claim 7 “In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look 8 beyond the complaint to a plaintiff's moving papers, such as a memorandum in opposition to a 9 defendant's motion to dismiss.” Broam v. Bogan, 320 F.3d 1023, 1026 n. 2 (9th Cir.2003) (quoting 10 Schneider v. Cal. Dep't. of Corr., 151 F.3d 1194, 1197 n. 1 (9th Cir.1998)). Here, Plaintiff alleges in 11 his opposition that Defendants violated 42 U.S.C. §§ 1981, 1983. Plaintiff did not allege these 12 violations in his complaint. Accordingly, these claims are dismissed.1 13 Even if the Court did grant Plaintiff leave to amend the complaint, Plaintiff’s 14 allegations would not survive a motion to dismiss. Under Rule 15(a)(2), the Court considers (1) 15 undue delay; (2) bad faith; (3) futility of amendment; and (4) prejudice to the opposing party when 16 determining whether a party may amend its pleading. United States v. Pend Oreille Pub. Util. Dist., 17 926 F.2d 1502, 1511 (9th Cir. 1991). Futility of amendment includes a claim that would be subject to 18 dismissal. Moore v. Kayport Package Express, Inc., 885, F.2d 531, 538 (9th Cir. 1989). Accordingly, 19 to properly plead a section 1983 violation a plaintiff must allege specific facts linking each defendant 20 to a § 1983 violation. Ortez v. Washington Country, 88 F.3d 804,809 (9th Cir. 1996). Here, Plaintiff’s 21 proposed amendments are futile because Plaintiff fails to allege specific facts linking each defendant 22 to a § 1983 claim. Additionally, Plaintiff identified no facts leading to the conclusion that his alleged 23 injuries were caused by a custom or policy of discrimination implemented by the LVVWD. See 24 25 26 1 The Court liberally construes Plaintiff’s opposition as a motion to amend, but dismisses it as futile. 9 1 Monell v. Department of Social Services of City of New York, 436 U.S. 658, 694, 98 S. Ct. 2018, 2 2037 (1978). 3 Further, 42 U.S.C. § 1981 is violated if an impaired contractual relationship exists 4 between employee and employer. Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476, 126 S. Ct. 5 1246, 1249-1250 (2006). Plaintiff does not allege that the contractual relationship between himself 6 and LVVWD was tangibly impaired. Therefore, the proposed amendments are futile. 7 7. Tort and Breach of Contract Claims 8 Plaintiff alleges state law claims for breach of contract, negligence, intentional 9 infliction of emotional distress, and negligent infliction of emotional distress. A district court has 10 discretion to decline to exercise supplemental jurisdiction over a claim if all claims over which it has 11 original jurisdiction have been dismissed or if the claim raises a novel or complex issue of state law. 12 See 28 U.S.C. § 1367(c). Since the Court has dismissed all claims over which it has original 13 jurisdiction, the Court declines to exercise its supplemental jurisdiction over Plaintiff’s state law 14 claims. 15 III. Request to Deem Plaintiff a Vexatious Litigant 16 The All Writs Act, 28 U.S.C. § 1651(a), provides district courts with the inherit power to 17 enter pre-filing orders against vexatious litigants. Weissman v. Quail Lodge Inc., 179 F. 3d 1194, 18 1197 (9th Cir. 1999). However, such pre-filing orders are an extreme remedy that should rarely be 19 used. De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990). “A court should enter a pre-filing 20 order constraining a litigant’s scope of actions in future cases only after a cautious review of the 21 pertinent circumstances.” Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007). 22 This circuit has held that four factors need to be examined before entering pre-filing orders requiring 23 litigants to obtain permission before filing documents with a court: (1) the litigant must be given 24 notice and a chance to be heard before the order is entered; (2) the district court must compile an 25 adequate record for review; (3) the district court must make substantive findings about the frivolous 26 10 1 or harassing nature of the plaintiff’s litigation; and (4) the vexatious litigant order must be narrowly 2 tailored to closely fit the specific vice encountered. De Long, 912 F.2d at 1147-1148. 3 First, Plaintiff was given notice through Defendants’ present motion to deem Plaintiff a 4 vexatious litigant (#9). Plaintiff did not file points and authorities in opposition to the motion to deem 5 him a vexatious litigant, though he opposed the motion to dismiss (#11). 6 Second, the Court has an adequate record. Plaintiff has filed three EEOC complaints, three 7 lawsuits, one mail fraud complaint, and one complaint seeking criminal prosecution of LVVWD co8 workers. With the exception of the complaint for mail fraud, Plaintiff has filed each complaint, 9 charge, and grievance either as a pleading or attached as an exhibit to a pleading within the first, 10 second, and third lawsuits. Plaintiff filed the first lawsuit on November 4, 2010 regarding Plaintiff’s 11 first Charge of Discrimination, No. 487-2010-00534. See Case No. 2:10-cv-01941-GMN-PAL. That 12 court dismissed all individual Defendants, leaving only the claims against LVVWD. Moreover, on 13 March 24, 2011, Plaintiff filed a second lawsuit regarding Plaintiff’s second Charge of 14 Discrimination, No. 487-2010-00905. See Case No. 2:11-cv-00435-KJD-PAL. The Court dismissed 15 all individual Defendants and granted LVVWD’s motion for summary judgment. The present case is 16 Plaintiff’s third lawsuit regarding Plaintiff’s third Charge of Discrimination, No. 487-2011-00822. 17 Here, all individual defendants have been dismissed and LVVWD’s motion for summary judgment 18 has been granted. 19 Third, Plaintiff’s ongoing Title VII claims against co-workers are both frivolous and of a 20 harassing nature. The co-workers need to have a work place where they are not subject to the constant 21 fear that their everyday actions will result in a civil lawsuit or having their name included in a request 22 for a criminal prosecution based on frivolous allegations. Accordingly, Plaintiff is barred from filing 23 future Title VII complaints against employees in their individual capacities without prior permission 24 of the Court. 25 // 26 // 11 1 V. Conclusion 2 Accordingly, IT IS HEREBY ORDERED that Defendants, Lee Brewer, Las Vegas Valley 3 Water District, Patricia Maxwell, Frank Milligan, Pat Mulroy, Juan Sanjurjo, Alan Schmidt, Gary 4 Wessell, Motion to Dismiss and Request to Deem Plaintiff a Vexatious Litigant (#9) is GRANTED; 5 IT IS FURTHER ORDERED that Plaintiff is hereby barred from asserting future Title VII 6 complaints against employees in their individual capacities without prior permission of the Court; 7 IT IS FURTHER ORDERED that Defendant Hyman Walker Motion to Dismiss (#22) is 8 GRANTED; 9 10 IT IS FURTHER ORDERED that all other outstanding motions are DENIED as moot; IT IS FURTHER ORDERED that the Clerk of the Court enter JUDGEMENT for 11 Defendants and against Plaintiff. 12 DATED this 11th day of July 2012. 13 14 15 16 _____________________________ Kent J. Dawson United States District Judge 17 18 19 20 21 22 23 24 25 26 12

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