Black v. State of Nevada

— 2 — 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 JAIME BLACK, Case No. 3:24-cv-00414-MMD-CSD 7 Plaintiff, ORDER v. — 8 — STATE OF NEVADA, ex rel. NEVADA 9 GAMING CONTROL BOARD, 10 Defendant. 11 I. SUMMARY 12 Plaintiff Jaime Black sued Defendant State of Nevada, ex rel. Nevada Gaming 13 Control Board regarding alleged retaliation, hostile work environment, and racial 14 discrimination during her former employment. (ECF No. 1 (“Complaint”).) Before the Court 15 is Defendant’s motion to dismiss. (ECF No. 13 (“Motion”).)1 As further explained below, 16 the Court grants Defendant’s Motion with leave to amend because Plaintiff fails to state 17 a short and plain statement showing she is entitled to relief and does not allege sufficient 18 facts to state a claim. 19 II. BACKGROUND 20 The following facts are adapted from the Complaint. The Nevada Gaming Control 21 Board (“Board”) employed Plaintiff from 2014 to 2023. (ECF No. 1 at 2.) Plaintiff’s duties 22 included but were not limited to overseeing the Board’s Human Resources Group, the 23 Board’s professional standards, and the Board’s liaison with the Nevada legislature. (Id 24 at 3.) Based on the Board’s policies, Plaintiff believed that opposing discrimination 25 prohibited by law to be integral to her duties. (Id. at 5.) 26 In 2021, Brittnie Watkins became a member of the Board and began supervising 27 the Board’s Administration Division where Plaintiff worked. (Id. at 3.) Plaintiff is a white — 28 — 2 Watkins extended race-based preferential treatment to Board employees and desired to 3 hire only Black applicants. (Id. at 7.) Watkins made comments such as “we are not hiring 4 from [northern Nevada],” which Plaintiff inferred to mean that Watkins wanted to hire from 5 Las Vegas and Henderson because those areas have more Black residents than northern 6 Nevada. (Id. at 7-8.) Watkins also allowed white northern Nevada residents to interview 7 for positions with no intent to consider hiring them. (Id. at 8.) 8 Plaintiff resisted Watkin’s hiring practices. (Id.) In retaliation, Watkins acted and 9 made statements that caused Plaintiff to experience a racially hostile work environment. 10 (Id. at 8-9.) For example, Plaintiff was removed from work duties, subjected to a lengthy 11 investigation that was conducted in a hostile manner, and placed on administrative leave. 12 (Id. at 10.) Watkins also failed to, among other things, investigate Plaintiff’s complaint of 13 race-based harassment and retaliation, restore Plaintiff to her former job duties, and 14 integrate Plaintiff back into the workplace following her leave. (Id. at 10-11.) Plaintiff filed 15 a complaint with the Nevada Equal Rights Commission in response. (Id. at 14.) 16 These events resulted in Plaintiff filing this action. She alleges seven causes of 17 action against Defendant, generally for retaliation, hostile work environment, and racial 18 discrimination. (Id. at 7-22.) 19 III. DISCUSSION 20 A. Failure to Allege Facts Demonstrating that the Court has Jurisdiction 21 Defendant first argues for dismissal because the Court does not have jurisdiction 22 as Plaintiff failed to include her administrative charge as an exhibit. (ECF No. 13 at 5.) 23 However, Title VII’s charge-filing requirement is a procedural—not jurisdictional— 24 prescription. See Fort Bend Cty. v. Davis, 587 U.S. 541 , 543 (2019). Moreover, Plaintiff 25 did attach her Notice of Right to Sue letter with the Complaint. (ECF No. 1-1 at 2.) The 26 Court denies the Motion to the extent Defendant challenges the Court’s jurisdiction. 27 /// — 28 — Claim — 2 — 3 Defendant argues that Plaintiff’s failure to provide a short and plain statement of 4 her claims showing that she is entitled to relief, in conjunction with her failure to allege 5 sufficient facts to state a claim, warrant dismissal. (ECF No. 13 at 4.) Plaintiff counters 6 that she properly alleged adequate facts when the Complaint is read in totality. (ECF No. 7 19 at 23-24.) The Court agrees with Defendant. 8 To survive a motion to dismiss for “failure to state a claim upon which relief can be 9 granted,” a complaint must provide “a short and plain statement of the claim” showing 10 that the plaintiff is entitled to relief. FED. R. CIV. P. 12(b)(6), 8(a)(2); Bell Atl. Corp. v. 11 Twombly, 550 U.S. 544, 555 (2007). The Court then assess whether the Complaint 12 contains sufficient factual matter to “state a claim to relief that is plausible on its face.” 13 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). A claim for relief is plausible 14 when it contains either direct or inferential allegations concerning “all the material 15 elements necessary to sustain recovery under some viable legal theory.” Twombly, 550 16 U.S. at 562 (citation omitted). 17 Defendant generally argues that Plaintiff fails to state a short and plain statement 18 showing she is entitled to relief and fails to state a claim to the extent that she sues for 19 retaliation, hostile work environment, and racial discrimination. The Court will address 20 each point in turn. 21 a. Short and Plain Statement 22 Plaintiff fails to provide a short and plain statement showing she is entitled to relief. 23 A complaint must be “simple, concise, and direct” so that a defendant may understand 24 what they are being sued for, but here the Complaint is verbose2 and ambiguous. 25 McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996); see also Hatch v. Reliance Ins. — 26 — 27 2For example, on page 13, paragraph 28 of the Complaint, Plaintiff writes almost an entire paragraph in one sentence. (ECF No. 1 at 13.) While much is alleged in this 28 paragraph, little is said; the language is ultimately vague and conclusory which does not 2 was confusing and conclusory); Nevijel v. North Coast Life Ins. Co., 651 F.2d 671 , 674 3 (9th Cir. 1981) (holding that a “verbose, confusing and almost entirely conclusory” 4 complaint violates Rule 8). Plaintiff appears to sue for retaliation, hostile work 5 environment, and racial discrimination, but these claims are split over seven unclear 6 causes of action. (ECF No. 1 at 7-22.) For example, as Defendant notes, Plaintiff’s first 7 cause of action for “Hostile Work Environment Resulting from Retaliatory Hostility and/or 8 Racial Hostility and Acts of Retaliation” is largely unintelligible: “Is it a claim for retaliation 9 based on an alleged hostile work environment or is it a hostile work environment claim 10 allegedly caused by racial hostility?” (ECR No. 13 at 4.) Plaintiff accordingly has not met 11 the Rule 8 standard of providing a short and plain statement. 12 b. Failure to State a Claim 13 1. Retaliation 14 Defendant then argues that Plaintiff does not allege sufficient facts that she 15 engaged in a Title VII protected activity for the purpose of her retaliation claims. (Id. at 616 8.) To establish a prima facie case of Title VII retaliation, a plaintiff must adequately allege 17 that: “(1) she engaged in an activity protected under Title VII; (2) her employer subjected 18 her to adverse employment action; [and] (3) there was a causal link between the protected 19 activity and the employer’s action.” Kama v. Mayorkas, 107 F.4th 1054, 1059 (9th Cir. 20 2024) (citation omitted). A plaintiff engages in a protected activity when they oppose a 21 practice made unlawful by Title VII or participates in any manner of investigation, 22 proceeding, or hearing under Title VII. See 42 U.S.C. § 2000e-3(a). 23 While Plaintiff alleges that she participated in a protected activity because she 24 opposed Watkin’s alleged racial discrimination, these statements are largely conclusory 25 as she does not allege specific facts about resistance. See Iqbal, 556 U.S. at 678 26 (requiring more than a legal conclusion couched as a factual allegation). For example, 27 Plaintiff states that she resisted Watkin’s attempt to abandon the Board’s race-neutral 28 hiring policies but does not allege any facts regarding how she opposed them: “Plaintiff 2 regarding hiring . . . .”3 (See ECF No. 1 at 8.) Without alleging adequate facts that she 3 participated in a protected activity, Plaintiff cannot sufficiently state a claim that Defendant 4 retaliated against her.4 5 2. Hostile Work Environment 6 Defendant also argues Plaintiff does not adequately state a claim of retaliation 7 based on a hostile work environment. (ECF No. 13 at 8-11.) A hostile work environment 8 exists where (1) the plaintiff was subjected to verbal or physical conduct of a harassing 9 nature, (2) this conduct was unwelcome, and (3) the conduct was sufficiently severe or 10 pervasive to alter the conditions of the victim’s employment and create an abusive 11 working environment. See Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1109-10 (9th Cir. 12 2000) (citation omitted). Plaintiff lists 17 actions that she alleges were retaliatory in the 13 Complaint, but she again does not state facts beyond conclusory allegations. (ECF No. 1 14 at 10-12.) For example, she says that an investigation was conducted in a “hostile and 15 unfair manner,” but does not explain how so beyond that she did not receive adequate 16 notice of the allegations and the investigation lasted more than five months. (Id. at 10, 11, 17 16, 17, 19, 20.) These facts alone do not allege harassing conduct stemming from alleged 18 retaliation, or a severe or pervasive environment that altered the conditions of her 19 employment, and therefore do not state a claim. 20 /// — 21 — 22 3Plaintiff clarifies in her response that she resisted by “attempt[ing] to effect delays, participat[ing] in meetings, and otherwise attempt[ing] to frustrate race-based hiring 23 decisions.” (ECF No. 19 at 6.) However, a plaintiff cannot defend against a motion to dismiss by relying on allegations absent from the complaint. See, e.g., Coleman v. Quaker 24 Oats Co., 232 F.3d 1271, 1292-93 (9th Cir. 2000) (preventing a plaintiff from using a new theory not pled in the complaint). Moreover, these allegations are again too vague to state 25 a claim as it is unclear how undefined delays and meeting participation resisted racebased hiring decisions to amount to protected activity under Title VII. — 26 — 4Plaintiff mentions that she had a “complaint” that she shared with Watkins—which, 27 depending on the situation, could be a protected activity—but does not provide any further context. (ECF No. 1 at 10, 17, 21.) At one point, she mentions a complaint about “race28 based harassment,” but it is unclear if this is the same complaint and alleges no other 2 Defendant finally argues that Plaintiff fails to state a claim based on a racially 3 hostile work environment. Similar to a hostile work environment claim, “[t]o prevail on a 4 hostile workplace claim premised on [race], a plaintiff must show: (1) that he was 5 subjected to verbal or physical conduct of a racial [] nature; (2) that the conduct was 6 unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the 7 conditions of the plaintiff’s employment and create an abusive work environment.” 8 Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003) (citation omitted). 9 Rude comments and teasing do not arise to the level of a hostile work environment. See 10 Manatt v. Bank of Am., NA, 339 F.3d 792, 798 (9th Cir. 2003) (citing Faragher v. City of 11 Boca Raton, 524 U.S. 775, 788 (1998)). 12 Again, Plaintiff only states conclusory allegations that Watkins “took actions and 13 made statements” that created a “racially hostile work environment.” (ECF No. 1 at 8-9.) 14 She fails to allege specific verbal or physical conduct of a racial nature, or how the conduct 15 altered the conditions of her employment. The only relevant factual allegations are 16 Watkins saying that the Board would not hire from northern Nevada and the alleged sham 17 interviews of white northern Nevada residents, but again these facts alone are not 18 sufficient to allow the Court to find a plausible claim that the comments were directed at 19 Plaintiff and that they are severe or pervasive to alter the conditions of Plaintiff’s 20 employment. (Id. at 7-8.) 21 In sum, Defendant’s Motion is granted because Plaintiff fails to state a short and 22 plain statement showing she is entitled to relief and fails to allege sufficient facts to state 23 a claim. 24 IV. CONCLUSION 25 The Court notes that the parties made several arguments and cited several cases 26 not discussed above. The Court has reviewed these arguments and cases and 27 determines that they do not warrant discussion as they do not affect the outcome of the 28 Motion before the Court. 1 It is therefore ordered that Defendant's motion to dismiss (ECF No. 13) is granted 2 || with leave to amend because the Court cannot find that amendment is futile. Plaintiff must 3 || file her amended complaint curing the deficiencies identified herein within 15 days of the 4 || date of this order—that is, by April 11, 2025. Failure to do so will result in dismissal of this 5 || action with prejudice. 6 DATED THIS 27* Day of March 2024. — 8 — MIRANDA M. DU 9 UNITED STATES DISTRICT JUDGE — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —