Wilson v. Greater Las Vegas Association of Realtors

MOTION to Dismiss

D. Nev.April 24, 2014

1 ROGER L. GRANDGENETT II, ESQ., Bar # 6323 DUSTIN L. CLARK, ESQ., Bar# 10548 2 MARCUS B. SMITH, ESQ., Bar # 12098 LITTLER MENDELSON, P.C. 3960 Howard Hughes Parkway 4 Suite 300 Las Vegas, NV 89 169-5937 5 Telephone: 702.862.8800 Fax No.: 702.862.8811 Attorneys for Defendant 8 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA II NEDRA WILSON, 12 Plaintiff, Case No. 2:14-cv-00362-GMN-NJK 13 v. DEFENDANT’S MOTION TO DISMISS 14 GREATER LAS VEGAS ASSOCIATION 15 OF REALTORS, a Nevada non-profit 16 cooperative corporation, Defendant. 17 18 Defendant Greater Las Vegas Association of Realtors (the “Association”), by and through its 19 counsel, Littler Mendelson. P.C., hereby files this Motion to Dismiss pursuant to Rule 12(b)(6) of 20 the Federal Rules of Civil Procedures. This Motion is made and based upon the attached 21 Memorandum of Points and Authorities, all other pleadings on file with the Court in this matter, and 22 any oral argument permitted or requested by the Court. 23 MEMORANDUM OF POINTS AND AUTHORITIES 24 1. INTRODUCTION 25 This is an employment dispute. Plaintiff, an African American, alleges the Association 26 discriminated against her because of her race by discharging her for making an accounting error that 27 substantially increased the Association’s tax liability. Instead of accepting responsibility for this 28 LITTLER MENDELSON, P ,l. flIfl S3T ?2 IS’ HOD Case 2:14-cv-00362-APG-NJK Document 11 Filed 04/24/14 Page 1 of 15 I error as the former Chief Financial Officer (“CFO”) for the Association, Plaintiff now blames the 2 error on the subordinate who allegedly “provided” the information that led to the error. Plaintiff 3 alleges the Association discriminated against her because it did not also discharge the subordinate 4 (who is not African American). This allegation, however, is completely meritless because the 5 subordinate is not “similarly situated” to Plaintiff, a key requirement to any discrimination claim. 6 Recognizing ibis faial deficiency, Plainiiff adopts a tactic that is well-known to the Court and the 7 Association: she atiempts to create an appearance of impropriety by asserting a pleihora of 8 unfounded allegations regarding the misconduct of various non-African American employees who 9 were not discharged for their conduct. These allegations, however, are not helpful to Plaintiffs case 10 because the alleged misconduct involves circumstances and individuals entirely unrelated, in every 11 possible respect, to the events giving rise to this case. Therefore, Plaintiffs Complaint falls far short 12 of adequaiely pleading a valid claim of race discrimination. Plaintiff’s common law claims also fail 13 for a variety of reasons as discussed below. Therefore, in sum, Plaintiffs Complaint is nothing more 14 than a hodge-podge of various throw-away claims that cannot pass muster under Rule 12(b)(6). 15 II. PLAINTIFF’S FACTUAL ALLEGATIONS 16 Plaintiff was hired by the Association in July 2007 as ihe CFO, the position she held until her 17 discharge in May 2013 for making a significani accounting error. Compl. ¶j 13-15. Plaintiff alleges 18 a subordinate “provided” the erroneous information that led to ihe accounting error, and that the 19 subordinate, who is not African American, was not discharged. Id. at ¶ 16(d). Plaintiff alleges, 20 therefore, that she was subjected to different terms and conditions of employment than her 21 subordinate. Id. at ¶ 16(b). Plaintiff also alleges various non-African American employees were 22 also not discharged for a variety of alleged misconduct. Id. at ¶J 18-22. In sum, Plaintiff claims that 23 the Association has a pattern and practice of discriminating against African Americans. This claim 24 is meritless. 25 On March 10, 2014, after purportedly exhausting her administrative remedies, Plaintiff 26 commenced this action asserting the following seven causes of action: (1) race discrimination in 27 violation of 42 U.S.C. § 2000e-2(a) (“Title VII”); (2) race discrimination in violation of NRS 28 613.330(1); (3) race discrimination in violation of 42 U.S.C. § 1961; (4) negligent hiring, retention, L[TTLERMENDLLSCN, P 2. S .,!.3 OS 151S9 SQl? 700 •0 Case 2:14-cv-00362-APG-NJK Document 11 Filed 04/24/14 Page 2 of 15 1 and supervision; (5) intentional infliction of emotional distress (“lIED”); (6) wrongful interference 2 with prospective economic advantage; and (7) bad faith and tortious discharge in violation of 3 Nevada public policy. For the reasons discussed below, the Association now seeks dismissal of the 4 Plaintiffs Complaint in its entirety. 5 III. STANDARD OF REVIEW 6 A court may dismiss a plaintiffs complaint for “failure to state a claim upon which relief can 7 be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “a short and plain 8 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Bell 9 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rule 8 demands “more than labels and 10 conclusions” or a “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 11 555. “Factual allegations must be enough to rise above the speculative level.” Id. Thus, to survive 12 a motion to dismiss, a complaint must contain sufficient factual matter to “state a claim to relief that 13 is plausible on its face.” Ashcroft i’. Jqbal, 129 S. Ct. 1937, 1949 (2009) (internal citation omitted). 14 In Iqbal, the Supreme Court recently clarified the two-step approach district courts are to 15 apply when considering motions to dismiss. First, a district court must accept as true all well-pled 16 factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of 17 truth. Id. at 1950, Mere recitals of the elements of a cause of action, supported only by conclusory 18 statements, do not suffice. Id. at 1949. Second, a district court must consider whether the factual 19 allegations in the complaint allege a plausible claim for relief Id. at 1950. A claim is facially 20 plausible when the plaintiffs complaint alleges facts that allow the court to draw a reasonable 21 inference that the defendant is liable for the alleged misconduct. Id. at 1949. Where the complaint 22 does not permit the court to infer more than the mere possibility of misconduct, the complaint has 23 “alleged-but not shown-that the pleader is entitled to relief.” Id. (internal quotation marks 24 omitted). When the claims in a complaint have not crossed the line from conceivable to plausible, 25 plaintiffs complaint must be dismissed. Twombly, 550 U.S. at 570. 26 III 27 III 28 7/! LITLL 3. Case 2:14-cv-00362-APG-NJK Document 11 Filed 04/24/14 Page 3 of 15 I IV. ARGUMENT 2 A. Plaintiffs Discrimination Claims (Her First, Second, and Third Claims for 3 Relict) Fail Because Plaintiff Does Not Adequately Allege Similarly Situated Employees Outside Her Protected Class Were Treated More Favorably Than 4 Her 5 Plaintiffs First, Second, and Third claims allege the Association discriminated against 6 Plaintiff because of her race.1 In order to prevail on any of these claims, Plaintiff must demonstrate, among other things, that similarly-situated individuals outside her protected class were treated more 8 favorably. Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 658 (9th Cir. 2002); Manatt v. Bank of America, NA, 339 F.3d 792, 797-98 (9th Cir. 2003) (applying Title VII elements to a 10 claim brought under § 1981); Apeceche v. White Fine County, 615 P.2d 975, 977 (Nev. 1980) (applying Title VII elements to a claim brought under NRS 6 13.330(1)). To adequately plead this 12 requirement, Plaintiff must allege other employees outside her protected class were similarly situated 13 “in all material respects.” Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006). Merely alleging 14 “some similarities” is insufficient. Id. As the Ninth Circuit has stated, “individuals are similarly 15 situated when they have similar jobs and display similar conduct.” Vasquez i County of Los 16 Angeles, 349 F.3d 634, 641 (9th Cir. 2003). 17 Plaintiffs Complaint is entirely devoid of any allegation that “similarly situated” employees 18 outside her protected class were treated more favorably. Plaintiff alleges a subordinate was 19 responsible for the accounting error that resulted in Plaintiffs discharge, and that this subordinate, 20 not an African American, was not discharged. Compl. at ¶ 16(d). However, this allegation fails as a 21 matter of law to satisfy the “similarly situated” requirement because “[ejmployees in supervisory 22 positions are generally deemed not to be similarly situated to lower level employees.” Vasquez v. 23 County of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003). In other words, because Plaintiff, as a 24 former CFO of the Association, Compl., at ¶ 15, was in a position of “much greater responsibility” 25 than the subordinate in question, Id., she is not similarly situated to the subordinate. The only other 26 27 Her first claim is alleges race discrimination in violation of Title VII, her second claim alleges race discrimination in violation of NRS 613.330(1), and her third claim alleges race 28 discrimination in violation of 42 U.S.C. § 1981. LITTLER MENDELSON, . 4. 320 a,, 78T 702 662 8600 Case 2:14-cv-00362-APG-NJK Document 11 Filed 04/24/14 Page 4 of 15 1 allegation Plaintiff makes is that various other non-African American employees engaged in 2 misconduct buE were not discharged by the Association. Id. aE ¶lf 18-22. However, Plaintiff does not 3 specifically allege these employees are similarly situated, and close examination of the allegations 4 regarding these employees reveals they did not have “similar jobs” or “did not engage in problematic 5 conduct of comparable seriousness.”2 Vasquez, 349 F.3d at 641. As such, Plaintiff has not 6 adequately pled that similarly situated employees outside her protected class were treated more 7 favorably. In sum, therefore, Plaintiff cannot state a valid claim for race discrimination and her 8 First, Second, and Third claims should be dismissed. 9 B. Plaintiffs Negligent Hiring Claim (Her Fourth Claim for Relief) Fails Because 10 Plaintiff Does Not Allegc Defendant Knew Or Should Have Known That The Employees In Question Had Dangerous Propensities In order to state a valid claim for negligent hiring, Plaintiff must adequately allege, among 12 other things, that the Association hired an employee even though it knew, or should have known, of 13 the employee’s dangerous propensities. Hall v 5SF, Inc., 930 P.2d 94, 98 (Nev. 1996). This tort 14 imposes a general duty on the Association to conduct a reasonable background check on a potential 15 employee. Id. Plaintiffs allegations fail to state a valid claim for negligent hiring and demonstrate 16 Plaintiffs fundamental misunderstanding of the nature of this claim. 17 Plaintiff alleges Irene Vogel, Nelson Janes, Dale Henson, Michael DellaCamera, and Krista Baker harassed Plaintiff and subjected her to disparate terms and conditions of employment. Compl. 19 at 45. Plaintiff also alleges the Association “knew or should have known of the above actions 20 undertaken by the aforementioned members of upper GLVAR management.” Id. at ‘ 46. These 21 allegations are far from sufficient to state a valid claim for negligent hiring. The mere fact that the 22 Association hired employees that allegedly engaged in harassment and discrimination after they 23 were hired does not automatically result in liability for negligent hiring. Hall, 930 P.2d at 98. 24 Rather, Plaintiff must also allege that the Association hired these employees even though it knew or 2 should have known at the time they were hired that these employees had a dangerous propensity to 26 harass and/or discriminate. Hall, 930 P.2d at 98. 1-lowever, Plaintiffs Complaint is entirely devoid 27 2 For example, she alleges the Associations IT Director stole computers owned by the 28 Association and gave them to family. Compl. at ¶ 20. UTTLERMENDELSON, P.C 5. C C ,*. SU. 300 L.iv,3.,Flv )l63 0307 702 IU 3807 Case 2:14-cv-00362-APG-NJK Document 11 Filed 04/24/14 Page 5 of 15 I of any such allegation. Indeed, the Complaint contains absolutely no factual allegations regarding 2 the hiring of these employees. No allegation, for example, that the Association did not conduct a 3 background check or that a background check, if conducted, would reveal that these employees 4 previously engaged in harassing or discriminatory conduct. There is also no allegation that the 5 Association failed to obtain an employment history or references from prior employers. 6 The only other allegation Plaintiff makes is that the Association “fail[ed] to hire 7 appropriately qualilied individuals for [the] positions” occupied by these employees. Compl. at ¶ 8 47. However, again, the negligent hiring claim does not require the Association to hire qualified 9 individuals; it requires the Association to conduct a reasonable background check on applicants 10 (whether or not qualified) and refuse to hire any applicant with dangerous propensities. Hall, 930 11 P.2d at 98 (hiring of a bouncer known to have violent propensities). Therefore, this throw-away 12 claim must be dismissed under Rule 12(b)(6) for failure to state a valid claim for relief. 13 C. Plaintiffs Negligent Retention and Supervision Claim (Her Fourth Claim for 14 Relief) Fails Because Such Claims Arc Limited to Actions by a Third-Party Non- Employee 15 Plaintiffs Complaint also demonstrates a fundamental misunderstanding of the nature of the 16 claim for negligent retention and supervision. In Nevada, such claims are intended only to protect 17 third parties from dangerous employees acting outside the scope of their employment. Reyes v. 18 Southwest Gas Corp., No. 2:07-cv-00068-BES-LRL, 2007 U.S. Dist. LEXIS 57421, at *9 (D. Nev. 19 Aug. 3, 2007). Indeed, the seminal Nevada case addressing this claim involves allegations that an 20 employer’s purported negligent supervision and retention of an employee resulted in a third party 21 being injured by the employee. Hall, 930 P.2d at 99, citing 27 Am.Jur.2d Employment Relationship 22 at 475-76 (1996); see also Rockwell i Sue Harbor Budget Suites, 112 Nev. 1217, 925 P.2d 1175 23 (1996) (negligent hiring, training and supervision claim based upon tenant killed by security guard). 24 Therefore, Plaintiffs claim fails as a matter of law because Plaintiff is not a third-party non- 25 employee. Indeed, Plaintiff alleges that, during her employment with the Association, several 26 Association employees harassed her and subjected her to disparate terms and conditions of 27 employment. Compl. at ¶ 13, 45. Accordingly, this claim fails on its face. 28 LITTLER MENDELSON, P 6. 300 L•IV•3•NV flibo 3937 002 667 *600 Case 2:14-cv-00362-APG-NJK Document 11 Filed 04/24/14 Page 6 of 15 Moreover, Plaintiff’s Complaint does not allege the Association’s employees acted outside 2 the course and scope of their employment. The U.S. District Court for the District of Minnesota held 3 in Leidig v. HoneywelL Inc., 850 F. Supp. 796, 806-807 (D, Minn. 1994), that the tort of negligent 4 retention was not applicable where the alleged harmful acts were within the course of employment. 5 In fact, liability for negligent retention is generally claimed only when an employee’s actions clearly 6 fall outside the scope of the employment relationship. Id. at 807. The Court in Leidig found that [A]fter an exhaustive search of the case law, in this jurisdiction and elsewhere, 8 we have failed to uncover any decision in which the doctrine of negligent hiring or retention has been applied to conduct which arises within the course and 9 scope of an employment relationship. This lack of precedential authority is not surprising, given the fact that the raison d’etre for the negligent hiring and 10 retention doctrines was the unavailability of a recovery for conduct which was 11 actionable under traditional principles of vicarious liability. 12 Id, at 807. 13 1-lere, the Complaint alleges the Association’s employees caused Plaintiffs injuries while 14 acting within the course of their employment, not by dangerous behavior outside the scope of their 15 employment. See e.g., Compl. ¶fflJ 16(a)-(c), 45. In this regard, a negligent retention and supervision 16 claim is simply not applicable here. Leidig, 850 F. Supp. at 806-807; Di Cosala v. Kay, 450 A.2d 17 508, 515 (N.J. 1982). Accordingly, for all the reasons stated above, Plaintiffs fourth claim for relief 18 warrants dismissal. 19 D. Plaintiffs lIED Claim (Her Fifth Cause of Action) Fails Because Plaintiff Fails 20 To Allege An Objectively Verifiable Jndicia of the Alleged Distress and Because Employment Decisions Do Not Constitute Extreme and Outrageous Conduct 21 Plaintiffs lIED claim falls woefully short of stating a valid claim for relief. In order to state 22 a valid lIED claim, Plaintiff must adequately allege, among other things, “severe or extreme 23 emotional distress,” which, in Nevada, requires Plaintiff to allege some “objectively verifiable 24 indicia of the severity of [the] distress,” such as plaintiffs seeking medical or psychiatric assistance. 25 Miller v. Jones, 970 P.2d 571, 577 (Nev. 1998). Plaintiff clearly has not satisfied this pleading 26 requirement. Indeed, while Plaintiff alleges, in highly conclusory terms, that she “suffered 27 emotional distress and mental anguish,” Compl. ¶ 27, and that this purported distress was 28 LIE 7. 0161 03? 7D 663 86C0 Case 2:14-cv-00362-APG-NJK Document 11 Filed 04/24/14 Page 7 of 15 I “manifested in a number of different ways,” Id. at ¶ 56, the only allegation even remotely related to 2 an objectively verifiable indicia of the severity of the alleged distress is the vague allegation that 3 Plaintiff “was place on high blood pressure medication for the first time in her life,” Id. at ¶ 56. Yet, 4 she only vaguely attributes this medication to her alleged distress and does not explicitly allege she 5 sought medical or psychiatric for the distress. Accordingly, this claim fails because Plaintiff does 6 not adequately allege severe or extreme emotional distress. 7 Moreover, Plaintiffs lIED claim also fails because personnel management decisions and 8 activity “is insufficient to support a claim of intentional infliction of emotional distress, even if 9 improper motivation is alleged.” Welder i’. Univ. of Southern Nevada, 833 F. Supp. 2d 1240, 1245 10 (D. Nev. 2011) (quotation omitted). Management decisions consist “of such actions as hiring and 11 firing, project assignments, promotion and demotions, performance evaluations and other similar 12 acts.” Id. Indeed, in the recent opinion in GarThz i AFWU Nat ‘I Local 7156, No. 2:11 -cv-01 109- 13 PMP-CWI-I, 2012 U.S. Dist. LEXIS 83760, at *30 (D. Ncv., June 18, 2012), the Court held that 14 while management decisions may be “offensive, inconsiderate, and unkind,” these acts “do not rise 15 to the level of extreme and outrageous such that they exceed all bounds of decency.” Here, Plaintiff 16 aLleges the Association discharged her under circumstances that did not result in discharge for 17 Caucasian employees. Compi., at ¶ 16(d)-(e). Plaintiff also alleges the Association negligently 18 retained various Association employees that were the source of Plaintiffs alleged injuries. Id, at ¶ 19 45. As noted above, however, these are precisely the type of employment decisions that courts have 20 held do not rise to the level of extreme and outrageous conduct. Garity, 2012 U.S. Dist. LEXIS 21 83760, at 30. Therefore, this claim also fails as a matter of law and must be dismissed for the 22 reasons stated above. 23 E. Plaintiffs Wrongful Interference Claim (Her Sixth Cause of Action) Fails 24 Because Plaintiff Fails To Allege Defendant Had Knowledge Plaintiff Was Seeking Subsequent Employment 2) To establish a claim of wrongful interference with a prospective economic advantage, a 26 plaintiff must show (1) a prospective contractual relationship between the plaintiff and a third party; 27 (2) the defendant’s knowledge of this prospective relationship; (3) the intent to harm the plaintiff by 28 UHLERMENDELSOS&P 8. 99ll9 5937 I€2 HDO Case 2:14-cv-00362-APG-NJK Document 11 Filed 04/24/14 Page 8 of 15 I preventing the relationship; (4) the absence of privilege or justification by the defendant: and (5) 2 actual harm to the plaintiff as a result of the defendant’s conduct. Hodges i’. Greenspun Media 3 Group, LLC, No. 2:12-cv-01337-JCM-PAL, 2014 U.S. Dist. LEXIS 26053, at *20 (D. Nev. Feb. 28, 4 2014). 5 Plaintiff alleges the Association discharged her “under circumstances that require the 6 republication of a false, unsupported reason for [Plaintiffs] termination.” Compl. at ¶ 62. This is an 7 odd allegation given the fact that republication is not an element to a claim for wrongful 8 interference.3 The mere fact that Plaintiff purportedly had to republish a false reason for her 9 termination does not automatically mean the Association intended to harm Plaintiffs prospective 10 employment opportunities. Accordingly, this allegation is entirely irrelevant to this claim. 11 Plaintiff also alleges the Association interfered with potential relationships with future employers by 12 providing a false reason for her termination, when it truly dismissed her due to her race. Id. ¶ 61- 13 64. Plaintiff fails to allege, however, that the Association had any knowledge whether or where she 14 was seeking subsequent employment. Accordingly, Plaintiff fails to allege sufficient facts to support 15 the second and third elements above, and dismissal is warranted. 16 F. Plaintiffs Tortious Discharge Claim (Her Seventh Cause of Action) Fails 17 Because Plaintiff Does Not Identify A Public Policy Recognized By The Nevada Supreme Court As Actionable For Such Claims 18 “An employer commits a tortious discharge by terminating an employee for reasons that 19 violate public policy.” Allum Valley Bank ofNevada, 114 Nev. 1313, 1316 (1998). The Nevada 20 Supreme Court has only recognized the following four public-policy reasons as actionable: 21 (1) termination in retaliation for filing a workers’ compensation claim, Hansen v. Harrah’s, 675 22 P.2d 394, 397 (1984); (2) termination following a refusal to work in unreasonably dangerous 2i conditions, D’Angelo i Gardner, 819 P.2d 206, 216 (1991); (3) termination arising from 24 whistleblowing activities, Wilisie v Baby Grand Corp., 774 P.2d 432, 433 (1989); and (4) 25 26 Republication is a theory of recovery for defamation. However, Plaintiff asserts no such 27 claim in this case. Moreover, even assuming, arguendo, that Plaintiff intended to assert such a claim, the claim necessarily fails because Nevada has not adopted the republication theory for 28 defamation claims. LIEL: 9. 8’78’ 1607 003 66? 6630 Case 2:14-cv-00362-APG-NJK Document 11 Filed 04/24/14 Page 9 of 15 1 termination for refusing to participate in illegal activities, Allu,n, 970 P.2d at 1067-68. 2 Plaintiffs allegations do not qualify for any of the recognized public policies. First, there is 3 no suggestion in the Complaint that Plaintiff was fired for filing a workers’ compensation claim or 4 because she refused to work in a physically dangerous environment. Thus, Hansen and D ‘Angelo do 5 not apply. Second, the allegations in the Complaint do not meet the requirements for a legally-viable 6 whistleblower claim. Such a claim requires the employee to allege that she was terminated because 7 she reported illegal or unsafe activity to the “appropriate authorities.” Wiltsie, 774 P.2d at 433. 8 Internal complaints to management or the employee’s boss simply do not suffice to establish a 9 whistleblower claim. Id. Plaintiff does not allege in her Complaint that she was terminated because 10 she reported illegal or unsafe activities to the appropriate authorities. She merely alleges that she 11 “objected” to the Association’s purported unlawful practices. See e.g., Compl., at j 72. Flowever, 12 mere objection to company policies is not sufficient to support a wrongful termination claim. 13 Bigeloii’ v. Bullard, 901 P.2d 630, 634 (Nev. 1995). Therefore, Plaintiffs allegations do not fall 14 within any of the recognized public policies. 15 Contrary to Plaintiffs belief, there is no public policy exception for purportedly objecting to 16 the management of a “non-profit cooperative corporation[j.” Compl. ¶ 76. Accordingly, Plaintiff is 17 asking the Court to create a new public-policy exception to the Nevada state at-will employment 18 doctrine. In addition, she makes no showing in her Complaint that disagreeing with how a “non- 19 profit cooperative corporation[j” is managed implicates the type of “strong and compelling public 20 policy” that is deserving of the “rare and exceptional” decision to create a brand-new exception to 21 the at-will employment doctrine. Ozawa v. Vision Airlines Inc., 216 P.3d 788, 791 (2009). Because 22 Plaintiff neither demonstrates that her claim fits within any existing public-policy exception nor 23 provides convincing grounds for a new exception, her tortious discharge claim should be dismissed. 24 G. Plaintiff’s State Law Claims Are Barred By The N1IA’s Exclusive Remedy Provision 25 The Fourth through Seventh claims of Plaintiffs complaint should be dismissed for the 26 separate and additional reason that the Nevada Industrial Insurance Act (“NIIA”) provides the sole 27 remedy for any alleged harm associated with her state law claims. It is well established that the 28 LITTLER MENDELSON, P 10. 10,I,,.,,Il7h., 302 3,3•, FV •9111 III’ ‘02 NO *300 Case 2:14-cv-00362-APG-NJK Document 11 Filed 04/24/14 Page 10 of 15 I NIIA provides the exclusive remedy for work-related injuries. The exclusive remedy provision of 2 the NIIA states that “[t]he rights and remedies provided in [the N1IAI for an employee on account of 3 an injury by accident sustained arising out of and in the course of employment shall be exclusive 4 of all other rights and remedies of the employee . . . at common law or otherwise NRS 5 616A.020(1) (emphasis added). In other words, “an employer is immune from suit by an employee 6 for injuries ‘arising out of and in the course of employment.” Woody. Safeway, 121 Nev. 724, 732, 7 121 P.3d 1026, 1031 (2005) (quoting NRS 616A.010(1)). At the pleading stage, the court 8 determines whether the exclusive remedy provision applies - thereby barring the plaintiffs claims - 9 by analyzing whether the plaintiffs alleged injuries “arose out of’ and “in the course of’ 10 employment.” Id.; Conway i’. Circus Circus, 116 Nev. 870, 871, 875, 8 P.3d 837, 838, 840 (2000). 11 As discussed immediately below, the exclusive remedy provision applies to Plaintiffs alleged 12 injuries and, as such, Plaintiffs common law claims (her Fourth through Seventh claims) should be 13 dismissed. 14 1. Plaintiff’s Alleged Injuries “Arose Out OF’ and “In the Course OF’ Her 15 Employmcnt With The Association “An injury is said to arise out of one’s employment when there is a causal connection 16 between the employee’s injury and the nature of the work or workplace.” Safeway, 121 Nev. at 733, 17 121 P.3d at 1032. The Nevada Supreme Court has stated that an injury arises out of plaintiffs 18 employment if the injury occurred while plaintiff was performing her duties. Id. at 736, 121 P.3d at 19 1034. “[Wjhether an injury occurs within the course of the employment refers merely to the time 20 and place of employment, i.e., whether the injury occurs at work, during work hours, and while the 21 employee is reasonably performing his or her duties.” Safeway, 121 Nev. at 733, 121 P.3d at 1032. 22 Here, Plaintiff concedes her alleged physical injuries arose out of her and in the course of her 23 employment with the Association. Specifically, Plaintiff alleges the Association’s conduct, which 24 occurred while Plaintiff was performing her duties as CFO of the Association, “caused financial, 25 psychological, and physical injury to [Plaintiff].” Compl. at ¶ 48. Accordingly, Plaintiffs injury, 26 per her own admission, arose out of and in the course of her employment with the Association. As a 27 result, Plaintiffs claims are barred by the NIIA’s exclusive remedy provision and the Association is 28 LITTLEMENDI9ON, P 11 IV IVIII C1 !6 IIDV Case 2:14-cv-00362-APG-NJK Document 11 Filed 04/24/14 Page 11 of 15 1 immune from suit, unless the “intentional tort” exception to the exclusive remedy provision applies. 2 As discussed immediately below, however, the exception does not apply. 3 2. The Intentional Tort Exception To The Exclusive Remedy Rule Does Not Apply Employers are not immune from suit under the N1IA’s exclusive remedy provision for their 5 intentional torts. Advanced Counter/op Design v. Dist Ci., 984 P.2d 756, 758 (Nev. 1999). The 6 Nevada Supreme Court has held, however, that bare allegations of intent are not enough - an 7 employee “must provide facts in his or her complaint which show the deliberate intent to bring about 8 the injury.” Id. For example, in Baijesieh v Fayc’s Pub., 787 P.2d 405 (Nev. 1990), the plaintiff 9 alleged that the majority stockholder of her employer “intentionally and ‘violently’ closed a 10 refrigerator door on her arm.” Id. at 406. The intentional tort exception does not apply to this case 11 because Plaintiff does not allege the Association engaged in the alleged conduct with the specific 12 intent to harm Plaintiff Rather, Plaintiff merely alleges the Association engaged in various 13 employment decisions that ultimately resulted in Plaintiffs injuries. Consequently, Plaintiffs 14 common law claims (her Fourth through Seventh claims) are barred by the exclusive remedy 15 provision of the NIJA and should be dismissed. 16 17 Plaintiffs Claims For Negligent Hiring, Retention, And Supervision And lIED (Her Fourth and Fifth Claims For Relief) Are Barred By The Availability Of 18 Statutory Remedies 19 Plaintiffs negligent hiring, retention, and supervision and lIED claims are based upon the 20 Association’s alleged discriminatory conduct. Compl. at ¶‘ 45, 54. This is fatal to these claims. 21 The Nevada Supreme Court has specifically held that an employee cannot maintain separate ton 22 claims premised upon discriminatory conduct that is subject to the comprehensive statutory remedies provided by NRS 613.310 ci seq. - Nevada’s anti-discrimination statute. Sands Regent v 24 Valgardson, 105 Nev. 436, 440 (1989). In other words, because NRS 613.310 already provides 25 comprehensive remedies for discriminatory conduct, state tort claims alleging discrimination are 26 unnecessary and are therefore barred. Id. This is well-established Nevada law. D ‘Angelo v. 27 Gardner, 107 Nev. 704, 710 (1991) (NRS 613.310 is the sole remedy available for claims based on 28 discrimination). Moreover, the U.S. District Court for the District of Nevada has applied the same UT ILER MENDELSON, P 12. J00 0161 5Il TO 60 6600 Case 2:14-cv-00362-APG-NJK Document 11 Filed 04/24/14 Page 12 of 15 I rationale and dismissed state tort claims when such claims were premised upon discriminatory 2 conduct covered by federal statutes with adequate remedies. See e.g., Lund v. J C. Penney Outlet, 3 911 F. Supp. 442, 445 (D. Nev. 1996). 4 Plaintiff’s negligent hiring, retention, and supervision claim (her Fourth Claim for Relief) is 5 premised on the allegation that the Association did not “control its employees . . . so that [they] 6 would not intentionally harm [Plaintiff] and other African-American employees . . . by subjecting 7 [Plaintiff] and other African-Americans to disparate terms and conditions of employment with 8 regarding [sic] to discipline and retention . . . .“ Compl. at ¶ 45. In addition, Plaintiff’s lIED claim 9 (her Fifth Claim for Relief) is premised on “the above campaign of discrimination, disparate 10 treatment, and harassment directed to [Plaintiff] and her African-American colleagues Id. at ¶ 11 54. Accordingly, as stated above, these claims are based upon the alleged race discrimination 12 engaged in by the Association. As such, these claims are barred as a matter of law. Sands, 105 Nev. 13 at 440; D ‘Angelo, 107 Nev. at 710; Lund, 911 F. Supp. at 445; Staten v. Lowe’s HIW, Inc., No. 2:13- 14 cv-00972-RCJ-CWI-I, 2013 U.S. Dist. LEXIS 132799, *6 (D. Nev. Sep. 17, 2013) (dismissing 15 negligent training and supervision claim because “this claim does not lie in Nevada based upon 16 statutorily improper discrimination”). Even assuming therefore that these claims do not fail under 17 Iqbal and Twombly or are not barred by the exclusive remedy provision of the NIIA, the Court must 18 nevertheless dismiss them as barred by the availability of statutory remedies. 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSQN, 1 3. 6QII,...dlt,1,., S.!,. 305 LII LSI•I NV 89161 1957 IC? II? 6950 Case 2:14-cv-00362-APG-NJK Document 11 Filed 04/24/14 Page 13 of 15 I V. CONCLUSION 2 Based on the foregoing, Defendant the Association respectfully requests that this Court grant 3 its Motion and dismiss Plaintiff’s Complaint pursuant to NRCP 12(b)(6). The Association further 4 requests that the dismissal be with prejudice as to Plaintiffs common law claims (her Fourth through 5 Seventh claims) because no amendment can remedy the fact that Plaintiffs claims are bared by the 6 exclusive remedy provision of the NIIA. 7 Dated: April 9t’2oi4 8 Respectfully submitted, 9 10 _____ ROGER L. GRANDGENETT II, ESQ. 11 DUSTIN L. CLARK, ESQ. MARCUS B. SMITH, ESQ. 12 LITTLER MENDELSON, P.C. 13 Attorneys for Defendant 14 15 16 17 18 19 20 21 77 23 24 25 26 27 28 LITTLER MENOELSON! 14. *QItfl.!dIl.h.. S.;! JO L.eV..IN €1161 I9I 701 U? BID? Case 2:14-cv-00362-APG-NJK Document 11 Filed 04/24/14 Page 14 of 15 PROOF OF SERVICE 7 I am a resident of the State of Nevada, over the age of eighteen years, and not a party to the 3 within action. My business address is 3960 Howard Hughes Parkway, Suite 300, Las Vegas, Nevada 4 89169. On AprilQ014, I served the within document(s): 5 DEFENDANT’S MOTION TO DISMISS 6 By CM/ECF Filing - Pursuant to FRCP 5(b)(3) and LR 5-4. the above-referenced document was electronically filed and served upon the parties listed below through 8 the Court’s Case Management and Electronic Case Filing (CM/ECF) system: 9 Robert P. Spretnak, Esq. 10 The Law Office Of Robert P. Spretnak 8275 S. Eastern Avenue, Suite 200 11 Las Vegas, Nevada 89123 12 Attorney for Plaintiff 13 1 am readily familiar with the firms practice of collection and processing correspondence for 14 mailing and for shipping via overnight delivery service. Under that practice it would be deposited with the U.S. Postal Service or if an overnight delivery service shipment, deposited in an overnight 16 delivery service pick-up box or office on the same day with postage or fees thereon fully prepaid in 17 the ordinary course of business. 18 1 declare under penalty of perjury that the foregoing is true and correct. Executed on April 19 O14, at Las Vegas, Nevada. 28 Firniwide: 25933954.2 077853.1001 15. 002 162 6102 Case 2:14-cv-00362-APG-NJK Document 11 Filed 04/24/14 Page 15 of 15