Newman v. Tribal Casino Gaming Enterprise

MOTION to Dismiss for Lack of Jurisdiction , MOTION to Dismiss for Failure to State a Claim

W.D.N.C.June 1, 2017

LEGAL\30645577\1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION Case No. 1:17-cv-00077-MR-DLH BARBARA NEWMAN, Plaintiff, vs. TRIBAL CASINO GAMING ENTERPRISE, Defendant. DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT Fed. R. Civ. P. 12(b)(1) and 12(b)(6) Defendant Tribal Casino Gaming Enterprise (“Defendant”), through counsel and pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, moves the Court for an order dismissing Plaintiff Barbara Newman’s (“Plaintiff”) Amended Complaint and claims against it for lack of subject matter jurisdiction based on the doctrine of tribal sovereign immunity. Alternatively, Defendant moves the Court for an order dismissing Plaintiff’s Amended Complaint for failure to state a claim upon which relief can be granted. This Motion is made in lieu of answering Plaintiff’s Amended Complaint. Defendant is contemporaneously filing a brief in support of this Motion setting forth in more detail the grounds for this Motion as well as the reasons Plaintiff’s Amended Complaint and claims should be dismissed. Defendant is also contemporaneously filing in support of this Motion the Declaration of Jo Ray Case 1:17-cv-00077-MR-DLH Document 15 Filed 06/01/17 Page 1 of 3 2 LEGAL\30645577\1 Executed Under Penalty of Perjury Pursuant to 28 U.S.C. § 1746(2) as Exhibit A to the supporting brief. Subject to this Motion, Defendant expressly reserves the right to assert any and all additional defenses in answer to Plaintiff’s Amended Complaint, should an answer become required. WHEREFORE, Defendant respectfully requests that the Court enter an order: 1. Dismissing Plaintiff’s Amended Complaint and claims with prejudice; and 2. Awarding Defendant such other and further relief as to it seems just and proper. This the 1st day of June, 2017. COZEN O’CONNOR By: /s/Patrick M. Aul Patrick M. Aul, NC Bar # 39506 301 S. College Street, Suite 2100 Charlotte, North Carolina 28202 Telephone: 704.376.3400 Facsimile: 704.334.3351 Email: paul@cozen.com Counsel for Defendant Tribal Casino Gaming Enterprise Case 1:17-cv-00077-MR-DLH Document 15 Filed 06/01/17 Page 2 of 3 3 LEGAL\30645577\1 CERTIFICATE OF SERVICE The undersigned attorney hereby certifies that he electronically filed the foregoing Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint with the Clerk of Court using the CM/ECF system and he served the foregoing document upon the party shown below by U.S. Mail, postage prepaid, addressed as follows: Barbara Newman P.O. Box 2307 Blue Ridge, G.A. 30513 Pro Se Plaintiff This the 1st day of June, 2017. /s/Patrick M. Aul Patrick M. Aul Case 1:17-cv-00077-MR-DLH Document 15 Filed 06/01/17 Page 3 of 3 LEGAL\30771492\1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION Case No. 1:17-cv-00077-MR-DLH BARBARA NEWMAN, Plaintiff, vs. TRIBAL CASINO GAMING ENTERPRISE, Defendant. DEFENDANT’S BRIEF IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT Defendant Tribal Casino Gaming Enterprise (“Defendant” or “TCGE”), through counsel and pursuant to Local Rules 7.1(C) and 7.1(D), submits this Brief in Support of Its Motion to Dismiss the Amended Complaint of Pro Se Plaintiff Barbara Newman (“Plaintiff”). FACTUAL BACKGROUND AND PROCEDURAL HISTORY Defendant is a wholly-owned and operated enterprise of the Eastern Band of Cherokee Indians (“EBCI”). [See Exh. “A”, Ray Decl. ¶ 3]. EBCI is a federally recognized Indian tribe located in Cherokee, North Carolina. [Ray Decl. ¶ 4]; see also 25 U.S.C. § 479a-1 transferred to 25 U.S.C. § 5131; 81 Fed. Reg. 5019, 521 (Jan. 29, 2016). All TCGE employees, including Plaintiff, are employees of a tribal enterprise. [Ray Decl. ¶ 7]. Plaintiff was employed by Defendant for a short time Case 1:17-cv-00077-MR-DLH Document 15-1 Filed 06/01/17 Page 1 of 12 2 LEGAL\30771492\1 period in 2015 as both a table games trainee and table games dealer at a TCGE casino located on EBCI Indian Reservation Lands. Plaintiff was subject to the rules and regulations of the Cherokee Tribal Gaming Commission while she was employed at the property, and her employment with Defendant was conditioned on passing a background check conducted by the Cherokee Tribal Gaming Commission. [Ray Decl. ¶¶ 5-6]. On January 20, 2016, Plaintiff made a claim of discrimination with the Raleigh office of the EEOC and claimed that she was discriminated against based on her age.1 [ECF No. 6, p. 3]. On December 16, 2016, the Charlotte office of the EEOC issued a Dismissal and Notice of Rights to Plaintiff in which the Commission advised Plaintiff it was closing the file on her claim because the EEOC had “no jurisdiction” over her claims against Defendant. [ECF No. 1, p. 8; ECF No. 6, p. 3]. Despite the EEOC’s unequivocal statement that it lacks jurisdiction over Plaintiff’s age discrimination claim, Plaintiff filed her initial Complaint in this action on March 16, 2017 asserting a single claim for discrimination under the Age Discrimination in Employment Act. 2 [ECF No. 1, p. 1 It appears that Plaintiff actually submitted an Intake Questionnaire to the EEOC’s Raleigh office rather than a formal charge of discrimination. Nevertheless, the EEOC ultimately determined that no jurisdiction existed for Plaintiff’s claims. 2 Plaintiff subsequently amended her Complaint with leave of Court on April 5, 2017, and labeled her Amended Complaint “Complaint Amendment II.” [ECF No. 6]. Her Amended Complaint likewise only asserts a single claim for discrimination under the Age Discrimination in Employment Act. [ECF No. 6, p. 3]. Case 1:17-cv-00077-MR-DLH Document 15-1 Filed 06/01/17 Page 2 of 12 3 LEGAL\30771492\1 5]. Specifically, Plaintiff contends that she was subjected to unfair, age-based treatment because Defendant did not offer her another position after she failed to succeed as a table games dealer. Plaintiff claims that her employment was instead terminated without a “chance to improve.” [ECF No. 6, p. 8]. Plaintiff further contends that she raised issues of age discrimination during her employment to which Defendant did not respond. [Id.]. As fully set forth below, Plaintiff’s Amended Complaint should be dismissed in its entirety. First, this Court lacks subject matter jurisdiction over Plaintiff’s claims because Defendant enjoys sovereign immunity from suit under the ADEA. Congress has not chosen to abrogate sovereign immunity with regard to the ADEA, nor has Defendant waived sovereign immunity for any ADEA claims. Second, even if Plaintiff could somehow shoulder her burden of proving subject matter jurisdiction (which she cannot), Plaintiff’s Amended Complaint should still be dismissed for failure to state a cause of action against Defendant under the ADEA. Accordingly, dismissal of Plaintiff’s Amended Complaint with prejudice is warranted and proper. ARGUMENT I. THE MOTION TO DISMISS STANDARD. Federal Rule of Civil Procedure 12(b)(1) provides that dismissal of a complaint is appropriate in circumstances where a court lacks subject matter Case 1:17-cv-00077-MR-DLH Document 15-1 Filed 06/01/17 Page 3 of 12 4 LEGAL\30771492\1 jurisdiction over the dispute. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (holding that a court “must dismiss the complaint in its entirety” when it lacks subject matter jurisdiction over a matter); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982); see also Madewell v. Harrah’s Cherokee Smokey Mountains Casino, et al., No. 2:10cv8, 2010 WL 2574079 at *2-3 (W.D.N.C. May 3, 2010) (unreported) (dismissing claims against Defendant under Rule 12(b)(1) for lack of subject matter jurisdiction). A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). At the motion to dismiss stage, a court generally must assume that all well-pled facts are true. However, “legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement fail to constitute well-pled facts for Rule 12(b)(6) purposes.” Nemet Chevrolet, LTD v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The ultimate issue is whether the complaint contains “‘sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (citing Iqbal, 556 U.S. at 678 and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). If the plaintiff’s claims fail to contain well-pled facts sufficient to state a claim for relief that is plausible on its face, the complaint must be dismissed. Twombly, 550 U.S. at 570. Case 1:17-cv-00077-MR-DLH Document 15-1 Filed 06/01/17 Page 4 of 12 5 LEGAL\30771492\1 II. PLAINTIFF’S AMENDED COMPLAINT SHOULD BE DISMISSED UNDER RULE 12(b)(1) BECAUSE THE COURT LACKS SUBJECT MATTER JURISDICTION OVER THIS MATTER. “[W]hen a federal court concludes that it lacks subject matter jurisdiction, the court must dismiss the complaint in its entirety.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). Plaintiff bears the burden of establishing that subject matter jurisdiction exists. See, e.g., Tremblay v. Mohegan Sun Casino, 599 Fed. Appx. 25, 26 (2d Cir. 2015) (unpublished); Madewell, 2010 WL 2574079 at *2. The Supreme Court has expressly held that “Indian tribes are domestic dependent nations that exercise inherent sovereign authority.” Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2030 (2014) (internal citations omitted). Therefore, “as a matter of federal common law, an Indian tribe enjoys sovereign immunity from suit except where Congress has authorized the suit or the tribe has waived its immunity.” Tremblay, 599 Fed. Appx. at 26 (internal quotations and citations omitted); see also Kiowa Tribe of Oklahoma v. Manuf. Techs., Inc., 523 U.S. 751, 754 (1998) (“an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity”); State of FL. v. Seminole Tribe, 181 F.3d 1237, 1241 (11th Cir. 1999) (“a suit against an Indian tribe is . . . barred unless the tribe clearly waived its immunity or Congress expressly abrogated that immunity by authorizing the suit”). Notably, the “same presumption of immunity” likewise applies to all tribal agents. See id; Cook v. AVI Case 1:17-cv-00077-MR-DLH Document 15-1 Filed 06/01/17 Page 5 of 12 6 LEGAL\30771492\1 Casino Enters, Inc., 548 F.3d 718, 724-726 (9th Cir. 2008); Allen v. Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir. 2006). Here, the Court lacks subject matter jurisdiction over Plaintiff’s claims in this action under the long-established doctrine of tribal immunity because Defendant is a wholly-owned enterprise of EBCI formed under Cherokee tribal law. [Ray Decl. ¶¶ 3-4]; see also, e.g., Tremblay v. Mohegan Sun Casino, 599 Fed. Appx. 25, 26 (2d Cir. 2015) (unpublished); Furry v. Miccosukee Tribe of Indians of Fla., 685 F.3d 1224, 1228 (11th Cir. 2012); Madewell, 2010 WL 2574079 at *2, n. 5 (“The court takes judicial notice . . . as to the creation and tribal status of the TCGE”). Therefore, absent express authorization from Congress or clear waiver from EBCI and Defendant, Plaintiff’s ADEA claim cannot stand. Neither this Court nor the Fourth Circuit have directly addressed the issue of sovereign immunity in the context of an ADEA claim. However, the Second Circuit’s decision in Tremblay v. Mohegan Sun Casino, 599 Fed. Appx. 25 (2d Cir. 2015) (unpublished) is particularly instructive.3 In Tremblay, the plaintiff similarly sought redress under both Title VII and the ADEA from a tribal-owned casino. Recognizing the broad scope of sovereign immunity, the appellate court noted that 3 Also instructive is Magistrate Judge Howell’s Memorandum and Recommendation in Madewell v. Harrah’s Cherokee Smokey Mountains Casino, No. 2:10cv8, 2010 WL 2574079 (W.D.N.C. May 3, 2010) (unreported). In Madewell, at issue was tribal sovereign immunity in the context of personal injury and loss of consortium claims. Magistrate Judge Howell recommended dismissal of the plaintiff’s claims against this same Defendant, Tribal Casino Gaming Enterprises, on sovereign immunity grounds and opined that EBCI’s sovereign immunity extended to TCGE as a commercial enterprise of EBCI. See id. at *3. Case 1:17-cv-00077-MR-DLH Document 15-1 Filed 06/01/17 Page 6 of 12 7 LEGAL\30771492\1 suit against a tribal agency will only proceed where Congress abrogates such immunity or a tribe clearly waives that immunity. Id. at 26. It then stated: “Congress has not unequivocally expressed its purpose to abrogate tribal sovereign immunity pursuant to the ADEA nor has plaintiff identified any applicable waiver of immunity from such suits in federal court.” Id. The appellate court, therefore, specifically held that “tribal sovereign immunity barred Tremblay’s ADEA claim” against the tribal-owned casino and affirmed dismissal of that claim under Rule 12(b)(1) for lack of subject matter jurisdiction. Id. Other courts that have considered this issue have also held that tribal sovereign immunity bars a plaintiff’s ADEA suit. See, e.g., Garcia v. Akwasasne Hous. Auth., 268 F.3d 76, 88 (2d Cir. 2001) (affirming dismissal of plaintiff’s ADEA claim against an Indian tribe agency); EEOC v. Fond du Lac Heavy Equip. & Constr. Co., Inc., 986 F.2d 246 (8th Cir. 1993) (affirming dismissal of a former employee’s ADEA claims); Boricchio v. Chicken Ranch Casino, 2015 WL 3648698 at *4 (E.D. Cal. June 10, 2015) (unreported) (“the ADEA does not waive a tribe’s sovereign immunity”). Again, in order for Congress to abrogate tribal sovereign immunity, it must “unequivocally express that purpose.” See Bay Mills, 134 S. Ct. at 2031. Not only did Congress fail to abrogate tribal sovereign immunity in the text of the ADEA, the ADEA is also silent with respect to any allegations addressing Congressional Case 1:17-cv-00077-MR-DLH Document 15-1 Filed 06/01/17 Page 7 of 12 8 LEGAL\30771492\1 authorization of private lawsuits under the ADEA against Indian tribes or tribal agents. Nowhere in the text of the ADEA is there any mention of tribal immunity from suit, much less an express and unequivocal abrogation of tribal immunity for private lawsuits alleging that an Indian tribe or tribal agency has engaged in age discrimination. See 29 U.S.C. §§ 621-634; also Fond du Lac, 986 F.2d at 250. Without statutory language to the contrary, the ADEA does not abrogate long-standing tribal sovereign immunity barring Plaintiff’s ADEA claims. Moreover, Defendant did not and has not waived its sovereign immunity with respect to Plaintiff’s claims. Here, any waiver “cannot be implied on the basis of a tribe’s actions, but must be unequivocally expressed.” Sanderlin v. Seminole Tribe of Florida, 243 F.3d 1282, 1286 (11th Cir. 2001). Plaintiff’s Amended Complaint contains no allegation that Defendant waived its sovereign immunity from her claims, and rightfully so - as there is no evidence whatsoever that Defendant has waived its sovereign immunity with regard to the ADEA. Against this backdrop of clear legal precedent, Plaintiff’s Amended Complaint is barred for lack of subject-matter jurisdiction. Plaintiff’s Amended Complaint states that jurisdiction in this matter is based on 28 U.S.C. § 1331 (federal question jurisdiction) and 29 U.S.C. § 626 (ADEA). [ECF No. 6., p. 1]. Because the ADEA does not abrogate the doctrine of tribal sovereign immunity, and EBCI has not waived its right to tribal sovereign immunity for itself or for its Case 1:17-cv-00077-MR-DLH Document 15-1 Filed 06/01/17 Page 8 of 12 9 LEGAL\30771492\1 enterprises and agents such as Defendant, the Court must dismiss Plaintiff’s Amended Complaint as a matter of law for lack of subject matter jurisdiction. III. PLAINTIFF’S AMENDED COMPLAINT SHOULD BE DISMISSED UNDER RULE 12(b)(6) BECAUSE PLAINTIFF CANNOT STATE A CAUSE OF ACTION AGAINST DEFENDANT UNDER THE ADEA. Alternatively, Plaintiff’s Amended Complaint should be dismissed under Rule 12(b)(6) for failure to state a cognizable claim against Defendant under the ADEA. “[A] complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Here, Plaintiff’s single-count claim is not plausible on its face. The prohibitions against age-based discrimination set forth in the ADEA apply only to “employers.” 29 U.S.C. § 623(a). The ADEA is silent with respect to whether Indian tribes are included in the definition of covered “employers” to which the ADEA applies. Id. § 630(b). Even if, arguendo, Defendant were an “employer” under the ADEA, the allegations in the Amended Complaint, if taken as true, do not state an actionable claim of age discrimination.4 In order to establish an actionable claim of age discrimination, Plaintiff must establish: (1) that she is a member of the age-protected class; (2) that she was subjected to an adverse employment action; (3) that she was performing her job duties to TCGE’s 4 Defendant recognizes that pleadings filed by pro se plaintiffs are liberally construed. However, the law is clear that “the Court may not be an advocate for a pro se plaintiff and must hold the Complaint to certain minimal pleading standards.” Fisher v. Winston-Salem Police Dep’t, 28 F.Supp.3d 526, 529 (M.D.N.C. 2014) (dismissing plaintiff’s complaint under Rule 12(b)(6) for failure to state an actionable ADEA claim). Case 1:17-cv-00077-MR-DLH Document 15-1 Filed 06/01/17 Page 9 of 12 10 LEGAL\30771492\1 legitimate expectations at the time of the adverse action; and (4) that she was replaced by a substantially younger individual. See Arthur v. Pet Dairy, 593 Fed. Appx. 211, 216-17 (4th Cir. 2015); Darnell v. Tyson Foods, Inc., 536 Fed. Appx. 366, 369 (4th Cir. 2013). Plaintiff must establish that her age was the “but for” cause for Defendant’s termination decision. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009); Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 283 (4th Cir. 2004) (recognizing that an employer’s action must be taken “because of” an employee’s age to establish an ADEA violation). Failure to establish all of these elements is fatal to an age claim. Mitchell v. Convergys Corp., 2015 WL 6392950 *2 (W.D.N.C. Sept. 28, 2015) (citing Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003)). Here, Plaintiff’s conclusory allegations contained in her Amended Complaint, even if they were to be proven true, fall far short of the mark. Plaintiff’s sole factual support for her claims is that she was the oldest table games dealer in her group and that she was “not given a chance to improve.” [ECF No. 6, p. 8]. Plaintiff’s vague allegations do not rise to the level of stating an ADEA violation, however, because she fails to even allege two of her four prima facie elements. To the contrary, Plaintiff admits in the Amended Complaint that she was not meeting TCGE’s performance expectations at the time of her termination because she needed to “improve her dealer skills.” [ECF No. 6, p. 8]. Moreover, Case 1:17-cv-00077-MR-DLH Document 15-1 Filed 06/01/17 Page 10 of 12 11 LEGAL\30771492\1 the Amended Complaint is devoid of any allegation that Plaintiff was replaced by a younger employee. Finally, Plaintiff admits that TCGE employed other table games dealers in their 60s, yet does not claim that any of these protected class members were treated in a discriminatory manner. [ECF No. 6, p. 8]. Accordingly, dismissal of the Amended Complaint is likewise warranted for failure to state an actionable claim of age discrimination. CONCLUSION For each of the foregoing reasons, Defendant respectfully requests that this Court dismiss Plaintiff’s Amended Complaint in its entirety, and award Defendant such other and further relief as to it seems just and proper. This the 1st day of June, 2017. COZEN O’CONNOR By: /s/Patrick M. Aul Patrick M. Aul, NC Bar # 39506 301 S. College Street, Suite 2100 Charlotte, North Carolina 28202 Telephone: 704.376.3400 Facsimile: 704.334.3351 Email: paul@cozen.com Counsel for Defendant Tribal Casino Gaming Enterprise Case 1:17-cv-00077-MR-DLH Document 15-1 Filed 06/01/17 Page 11 of 12 12 LEGAL\30771492\1 CERTIFICATE OF SERVICE The undersigned attorney hereby certifies that he electronically filed the foregoing Defendant’s Brief In Support of Its Motion to Dismiss Plaintiff’s Amended Complaint with the Clerk of Court using the CM/ECF system and he served the foregoing document upon the party shown below by U.S. Mail, postage prepaid, addressed as follows: Barbara Newman P.O. Box 2307 Blue Ridge, G.A. 30513 Pro Se Plaintiff This the 1st day of June, 2017. /s/Patrick M. Aul Patrick M. Aul Case 1:17-cv-00077-MR-DLH Document 15-1 Filed 06/01/17 Page 12 of 12 Case 1:17-cv-00077-MR-DLH Document 15-2 Filed 06/01/17 Page 1 of 2 Case 1:17-cv-00077-MR-DLH Document 15-2 Filed 06/01/17 Page 2 of 2