Gonzales v. Harrah's Operating Company, Inc., No. 3:2013cv00230 - Document 14 (D. Nev. 2013)

Court Description: ORDER granting in part and denying in part Defendant's 9 Motion to Dismiss. Plaintiff shall file a supplemental motion within 30 days providing evidence that he received his right to sue letter on February 4, 2013 (due by 1/3/2014). Defendant may respond and Plaintiff may reply in accordance with the local rules. Signed by Chief Judge Robert C. Jones on 12/04/2013. (Copies have been distributed pursuant to the NEF - KR)
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Gonzales v. Harrah's Operating Company, Inc. Doc. 14 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 10 11 12 13 14 ) ) ) ) Plaintiff, ) ) v. ) HARRAH’S OPERATING COMPANY, INC., ) A Nevada Corporation dba RIO HOTELS & ) CASINOS; DOE ENTITIES I-X inclusive; and ) ) ROE CORPORATIONS I-X inclusive, ) ) Defendants. ___________________________________ MICHAEL JERRY GONZALES, an individual, 3:13-cv-230-RCJ-WGC ORDER 15 Currently before the Court is Defendant’s Motion to Dismiss Plaintiff’s Complaint with 16 Prejudice Pursuant to FRCP 12(b)(6) (#9). 17 BACKGROUND 18 On May 3, 2013, pro se Plaintiff Michael Jerry Gonzales filed an application to proceed 19 in forma pauperis with this Court and attached a copy of his complaint. (Mot. for IFP (#1); 20 Compl. (#1-1)). On May 8, 2013, Magistrate Judge William Cobb granted Plaintiff’s request 21 to proceed in forma pauperis and filed the complaint. (Order (#3); Compl. (#4)). 22 In the complaint, Plaintiff sued Defendant Harrah’s Operating Company, Inc. dba Rio 23 Hotels & Casinos. (Compl. (#4) at 1). The complaint alleged the following. Plaintiff had been 24 an employee of Defendant for over ten years in the capacity as stage crew technician and the 25 only non-Caucasian member of the crew during his employment. (Id. at 2). Plaintiff was 26 “Native American (Apache) and Hispanic of Spanish national descent.” (Id.). Plaintiff alleged 27 that Defendant had discriminated against him by subjecting him to harassment based on 28 national origin, cultural affiliation, race, age, and disability. (Id.). Plaintiff was 63 years old. Dockets.Justia.com 1 (Id. at 5). Plaintiff asserted that he had filed charges with the Equal Employment Opportunity 2 Commission (“EEOC”) and had received his right to sue letter on February 4, 2013. (Id. at 3). 3 Plaintiff asserted that his lawsuit had been filed within 90 days of the receipt of the right to sue 4 letter. (Id. at 4). Plaintiff worked for Defendant from May 2000 through October 2010. (Id. at 5 5, 15). 6 In his complaint, Plaintiff detailed differing treatment between himself and the rest of 7 the stage tech crew, being assigned to the lowest shifts, being subjected to unwarranted 8 reprimands, being refused training classes necessary for advancement and raises, reporting 9 misconduct to the human resources department, receiving a medical accommodation for an 10 injury, and his supervisor’s refusal to acknowledge the accommodation. (Id. at 6-11). In May 11 2010, Plaintiff went on vacation for a week. (Id. at 11). In his absence, other crew members 12 filled in for him with one of the entertainers. (Id.). That entertainer complained to a supervisor 13 about the quality of work by the other crew members. (Id. at 12). As a result, Plaintiff’s 14 supervisor told Plaintiff that he was making the rest of the crew look bad. (Id.). After that, 15 Plaintiff’s health began to deteriorate due to panic attacks and stress after he had told his co- 16 workers about his supervisor’s comments. (Id.). After Plaintiff had told some of his co-workers 17 that he had met with an attorney, Plaintiff’s crew members started to call him names when he 18 passed by–“Lazy f***ing Mexican, beaner, slacker, chief, wet back.” (Id.). Plaintiff’s supervisor 19 continued to call Plaintiff into his office several times a week regarding alleged complaints 20 made by crew members about Plaintiff. (Id.). 21 In his complaint, Plaintiff detailed the context of one of his supervisor’s statements of 22 “What do you expect to happen when a black man moves into the neighborhood?” (Id. at 12- 23 13). On July 21, 2010, Plaintiff reported the comment to his department supervisor. (Id. at 24 13). Two days later, Plaintiff was confronted by all three of his supervisors and was told to 25 “lighten up, have a sense a humor” and asked to apologize to the supervisor he had reported. 26 (Id.). Plaintiff refused to apologize. (Id.). Three days later, one of the supervisors told Plaintiff 27 that the supervisor Plaintiff had reported had been reprimanded. (Id.). On July 28, 2010, one 28 of Plaintiff’s supervisors removed Plaintiff from the position that he had been praised for by 2 1 the entertainer. (Id.). Plaintiff’s co-workers engaged in racial slurs around him, vandalized 2 photographs of him, and stopped talking when he was in the room. (Id. at 14). Plaintiff 3 reported the behavior to one of his supervisors but nothing was done. (Id.). At the end of 4 August 2010, Plaintiff sought medical attention for his panic attacks due to the hostile work 5 environment. (Id. at 14-15). Plaintiff’s stress caused his diabetes to spiral, which affected his 6 vision. (Id. at 15). Plaintiff was forced to take two medical leaves of absence and returned to 7 work a month after filing EEOC charges. (Id.). When he returned to work, his supervisors and 8 co-workers’ attitudes made him so uncomfortable and fearful that he took a second medical 9 leave which expired at the end of October. (Id.). Plaintiff was told that any continued absence 10 from work would be construed as his resignation. (Id.). 11 Plaintiff does not specifically enumerate his causes of action in the complaint. 12 However, he appears to be stating five causes of action for: (1) Title VII national origin and 13 race discrimination; (2) Title VII retaliation; (3) discrimination under the American with 14 Disabilities Act (“ADA”); (4) age discrimination under the Age Discrimination in Employment 15 Act (“ADEA”); and (5) violation of NRS § 613.330 et seq. (See id. 2, 15-18). 16 17 The pending motion now follows. LEGAL STANDARD 18 When considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, the 19 court must accept as true all factual allegations in the complaint as well as all reasonable 20 inferences that may be drawn from such allegations. LSO, Ltd. v. Stroh, 205 F.3d 1146, 1150 21 n.2 (9th Cir. 2000). Such allegations must be construed in the light most favorable to the 22 nonmoving party. Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). In general, the 23 court should only look to the contents of the complaint during its review of a Rule 12(b)(6) 24 motion to dismiss. However, the court may consider documents attached to the complaint or 25 referred to in the complaint whose authenticity no party questions. Id.; see Durning v. First 26 Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). 27 The analysis and purpose of a Rule 12(b)(6) motion to dismiss for failure to state a 28 claim is to test the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th 3 1 Cir. 2001). The issue is not whether a plaintiff will ultimately prevail but whether the claimant 2 is entitled to offer evidence to support the claims. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 3 249 (9th Cir. 1997) (quotations omitted). To avoid a Rule 12(b)(6) dismissal, a complaint does 4 not need detailed factual allegations; rather, it must plead “enough facts to state a claim to 5 relief that is plausible on its face.” Clemens v. Daimler Chrysler Corp., 534 F.3d 1017, 1022 6 (9th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 7 1964, 167 L.Ed.2d 929 (2007)); Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 8 173 L.Ed.2d 868 (2009) (stating that a “claim has facial plausibility when the plaintiff pleads 9 factual content that allows the court to draw the reasonable inference that the defendant is 10 liable for the misconduct alleged”). Even though a complaint does not need “detailed factual 11 allegations” to pass muster under 12(b)(6) consideration, the factual allegations “must be 12 enough to raise a right to relief above the speculative level . . . on the assumption that all the 13 allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555, 127 14 S.Ct. at 1965. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the 15 elements of a cause of action will not do.” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949. “Nor 16 does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual 17 enhancements.’” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. at 1966). 18 DISCUSSION 19 Defendant files a motion to dismiss all claims with prejudice. (Mot. to Dismiss (#9) at 1). 20 Defendant argues that Plaintiff’s Title VII and ADA claims must be dismissed with prejudice 21 because Plaintiff failed to file his suit within the 90-day period. (Id. at 2). Defendant asserts 22 that the right to sue letter was mailed on January 23, 2013, and, as such, the presumption is 23 that Plaintiff received the letter on January 26, 2013. (Id. at 3). Defendant asserts that, under 24 that presumption, the 90-day period expired on April 26, 2013. (Id.). Defendant asserts that 25 Plaintiff’s ADEA claim must be dismissed with prejudice for failure to file a charge of age 26 discrimination with the EEOC. (Id. at 4). 27 discrimination in violation of NRS § 613.330 must be dismissed with prejudice for failure to 28 exhaust administrative remedies. (Id.). Defendant asserts that Plaintiff never filed a charge Defendant contends that Plaintiff’s claim of 4 1 with the Nevada Equal Rights Commission (“NERC”) as required by statute. (Id.). 2 In support of the motion to dismiss, Defendant attached a copy of Plaintiff’s charge of 3 discrimination to the EEOC and California Department of Fair Employment & Housing. 4 (Charge of Discrimination (#9-2) at 4). The charge of discrimination alleged discrimination 5 based on race, national origin, retaliation, and disability and was signed by Plaintiff on 6 September 20, 2010. (Id.). Defendant also attached a copy of the EEOC’s Notice of Right 7 to Sue letter. (Right to Sue Ltr (#9-2) at 2). The right to sue letter stated that Plaintiff had to 8 file his Title VII, ADA, or Genetic Information Nondiscrimination Act (“GINA”) lawsuit in federal 9 or state court within 90 days of his receipt of the notice. (Id.). The right to sue letter stated 10 that the letter had been mailed to Plaintiff on January 23, 2013. (Id.). 11 In response, Plaintiff states that he received his right to sue letter by regular mail at 12 home on February 4, 2013 and “offers the possibility that inclement weather (i.e., snowstorms 13 which are normal in the South Lake Tahoe Basin in January, as is irregular mail delivery during 14 the winter season), may be a contributing factor in the receipt and/or delivery of the Notice of 15 Right to Sue.” (Resp. to Mot. to Dismiss (#12) at 2). Plaintiff asserts that, based on that 16 receipt date, his complaint had to be filed by May 6, 2013. (Id.). 17 In reply, Defendant asserts that Plaintiff has failed to rebut the three-day presumption 18 because a general claim of occasional delay is insufficient to prove that a particular letter was 19 not delivered on time. (Reply to Mot. to Dismiss (#13) at 3). Defendant asserts that Plaintiff 20 consented to the dismissal of his ADEA claim and his NRS § 613.330 claim because he failed 21 to offer any opposition to Defendant’s arguments. (Id. at 4). 22 I. Title VII and ADA Claims 23 “Title VII provides that upon dismissing a charge of discrimination, the EEOC must 24 notify the claimant and inform [him] that [he] has ninety days to bring a civil action.” Payan v. 25 Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119, 1121 (9th Cir. 2007) (citing 42 U.S.C. 26 § 2000e-5(f)(1)); see 42 U.S.C. § 12117(a) (stating that ADA discrimination claims follow the 27 same powers, remedies, and procedures as Title VII claims). The Ninth Circuit has held that 28 “[t]he requirement for filing a Title VII civil action within 90 days from the date [the] EEOC 5 1 dismisses a claim constitutes a statute of limitations.” Scholar v. Pac. Bell, 963 F.2d 264, 2 266-67 (9th Cir. 1992). “If claimant fails to file within [the] 90-day period, the action is barred 3 accordingly.” Id. at 267. 4 The Ninth Circuit states that when the date of actual receipt is unknown, the Court 5 estimates that date based on the date of the EEOC disposition and issuance of notice with 6 some compensation for mailing time. Payan, 495 F.3d at 1122. The Ninth Circuit uses a 7 three-day presumption and presumes that a plaintiff receives a right to sue letter three days 8 after the EEOC issued the letter. Id. at 1125. However, the presumption that a plaintiff 9 received the right to sue letter within a three-day period is rebuttable. Id. at 1126. 10 “In reviewing whether the presumption has been rebutted, courts look for evidence 11 suggesting that receipt was delayed beyond the presumed period.” Id. The Ninth Circuit has 12 held that general claims that mail is sometimes delayed will not be sufficient to rebut the presumption. We have all experienced mail delays on occasion; but a general claim of occasional delay is not sufficient to prove that a particular letter was not delivered on time. Rather, to rebut a mailing presumption, the plaintiff must show that she did not receive the EEOC’s right-to-sue letter in the ordinary course. 13 14 15 16 Id. 17 In this case, Plaintiff’s right to sue letter states that the EEOC mailed the letter on 18 January 23, 2013. (Right to Sue Ltr (#9-2) at 2). Under the three-day presumption, the Court 19 presumes that Plaintiff received the right to sue letter on January 26, 2013. Under that 20 presumption, Plaintiff had to file his lawsuit no later than April 26, 2013. Plaintiff filed his 21 complaint on May 3, 2013.1 This period is outside of the 90-day statute of limitations. 22 Plaintiff asserts that he received the right to sue letter on February 4, 2013, which would 23 make his filing timely and within the 90-day filing period. However, pursuant to Ninth Circuit 24 law, Plaintiff must provide evidence suggesting that the receipt was delayed beyond January 25 26 27 28 1 The Court finds that May 3, 2013 is the date that Plaintiff filed his complaint because he filed his motion to proceed in forma pauperis on this date along with his complaint. See Turner v. Power Servs., 2:11-CV-00190-PMP, 2012 WL 1574849, *4 (D. Nev. May 3, 2012) (discussing how a complaint is considered filed when delivered to the clerk of court along with an application to proceed in forma pauperis). 6 1 26, 2013. In support of the delay, Plaintiff speaks generally of the weather and irregular mail 2 delivery during the winter months. (See Resp. to Mot. to Dismiss (#12) at 2). The Ninth Circuit 3 has specifically held that this general claim is insufficient to rebut the three-day presumption. 4 See Payan, 495 F.3d at 1126. 5 This Court gives Plaintiff another opportunity to present evidence to rebut the three-day 6 presumption and demonstrate to the Court that he received his right to sue letter on February 7 4, 2013 as he alleges. The Court notes that Plaintiff may present evidence in the form of 8 affidavits from himself and/or others who know when he received his right to sue letter. 9 Plaintiff may also present the envelope that his right to sue letter came in. Plaintiff has 30 10 days from the date of this order to file a supplemental motion providing evidence that he 11 received his right to sue letter on February 4, 2013. Defendant may file a response and 12 Plaintiff may file a reply in accordance with the local rules. 13 Accordingly, the Court denies Defendant’s motion to dismiss Plaintiff’s Title VII and ADA 14 claims at this time. However, if Plaintiff fails to rebut the three-day presumption with sufficient 15 evidence, this Court will grant Defendant’s motion to dismiss these claims with prejudice 16 because they would be time-barred. 17 II. ADEA Claim 18 Pursuant to 29 U.S.C. § 626, “[n]o civil action may be commenced by an individual 19 under this section until 60 days after a charge alleging unlawful discrimination has been filed 20 with the [EEOC].” 29 U.S.C. § 626(d)(1). Such charge must be filed within 180 days after the 21 alleged unlawful practice occurred or “in a case to which section 633(b) of this title applies, 22 within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by 23 the individual of notice of termination of proceedings under State law, whichever is earlier.” 24 Id. § 626(d)(1)(A)-(B). 25 In this case, Plaintiff did not file an age discrimination charge with the EEOC. (See 26 Charge of Discrimination (#9-2) at 4). Because the latest date that the alleged unlawful 27 discrimination could have occurred was upon Plaintiff’s termination–October 2010–Plaintiff 28 cannot remedy this defect because more than 300 days has passed. As such, the Court 7 1 grants Defendant’s motion to dismiss Plaintiff’s ADEA claim with prejudice. 2 III. NRS § 613.330 Claim 3 Nevada Revised Statute § 613.330 provides that it is an unlawful employment practice 4 to engage in discrimination on the basis of race, color, religion, sex, sexual orientation, gender 5 identity or expression, age, disability, or national origin. Nev. Rev. Stat. § 613.330. Pursuant 6 to NRS § 613.405, “[a]ny person injured by an unlawful employment practice within the scope 7 of NRS 613.310 to 613.435, inclusive, may file a complaint to that effect with [NERC] if the 8 complaint is based on discrimination because of race, color, sex, sexual orientation, gender 9 identity or expression, age, disability, religion or national origin.” Nev. Rev. Stat. § 613.405. 10 Pursuant to NRS § 613.420, if NERC “does not conclude that an unfair employment practice 11 within the scope of NRS 613.310 to 613.435, inclusive, has occurred, any person alleging such 12 a practice may apply to the district court for an order granting or restoring to that person the 13 rights to which the person is entitled under those sections.” Nev. Rev. Stat. § 613.420. 14 However, no action authorized by NRS § 613.420 may be brought more than 180 days after 15 the date of the act complained of. Nev. Rev. Stat. § 613.430. 16 The Nevada Supreme Court has held that “the legislature intended that claims involving 17 employment discrimination were to be administratively exhausted prior to seeking redress in 18 the district courts.” Palmer v. State, 787 P.2d 803, 804 (Nev. 1990). The Nevada Supreme 19 Court has held that “an employee who brings unrelated claims in the district court without first 20 presenting them to NERC has failed to exhaust her administrative remedies.” Pope v. Motel 6, 21 114 P.3d 277, 280 (Nev. 2005). 22 In this case, Plaintiff did not file any discrimination claims with NERC. Moreover, 180 23 days have passed since Plaintiff’s termination. Accordingly, Plaintiff has failed to exhaust his 24 administrative remedies under this state law cause of action. The Court grants Defendant’s 25 motion to dismiss Plaintiff’s claim for violations of NRS § 613.330 with prejudice. 26 CONCLUSION 27 For the foregoing reasons, IT IS ORDERED that Defendant’s Motion to Dismiss 28 Plaintiff’s Complaint with Prejudice Pursuant to FRCP 12(b)(6) (#9) is GRANTED in part and 8 1 DENIED in part. The Court GRANTS the motion to dismiss the ADEA claim and the NRS § 2 613.330 claim with prejudice for failure to exhaust administrative remedies. The Court 3 DENIES the motion to dismiss Plaintiff’s Title VII and ADA claims for the time being and 4 provides Plaintiff with an opportunity to provide evidence to rebut the three-day presumption 5 as discussed above. 6 IT IS FURTHER ORDERED that Plaintiff shall file a supplemental motion within 30 days 7 of this order providing evidence, as discussed above, that he received his right to sue letter 8 on February 4, 2013. Defendant may file a response and Plaintiff may file a reply in 9 accordance with the local rules. 10 11 Dated this 4th day of December, 2013. DATED: This _____ day of December, 2013. 12 13 _________________________________ United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9