Elias v. Wynn Las Vegas LLC

— 1 — — 2 — UNITED STATES DISTRICT COURT — 3 — DISTRICT OF NEVADA — 4 — 5 IKE ELIAS, Case No. 2:23-cv-02111-ART-BNW 6 Plaintiff, ORDER on Motion to Dismiss and v. Related Motions (ECF Nos. 43, 47, 56, 7 94, 99) WYNN LAS VEGAS, LLC, a Nevada 8 Limited Liability Company, 9 Defendant. — 10 — — 11 — Plaintiff Ike Elias brings this action against Defendant Wynn Las Vegas, — 12 — LLC, alleging violations of his rights under the Americans with Disabilities Act — 13 — (“ADA”), 42 U.S.C. § 12101 et seq., Title VII of the Civil Rights Act, and Nevada — 14 — state law. Plaintiff alleges in his Second Amended Complaint (ECF No. 40) that — 15 — Defendant violated several provisions of the ADA, discriminated against him for — 16 — his race in violation of Title VII, wrongfully terminated him under Nevada state — 17 — law, and defamed him under Nevada state law. Before the Court is Defendant’s — 18 — Motion to Dismiss Plaintiffs’ Second Amended Complaint (ECF No. 47), filed on — 19 — December 30, 2024. Plaintiff submitted a response on January 10, 2025. (ECF — 20 — No. 54.) Defendant filed a reply on January 17, 2025. (ECF No. 59.) — 21 — For the reasons identified below, the Court grants Defendant’s motion to — 22 — dismiss, with leave for Plaintiff to amend his complaint. — 23 — I. FACTS — 24 — Mr. Elias’ (“Plaintiff’s”) allegations in his Second Amended Complaint — 25 — (“SAC”) are as follows: Plaintiff sustained an injury from a vehicle accident. (ECF — 26 — No. 40 at 2.) Plaintiff requested reasonable accommodations from Wynn Las — 27 — Vegas, LLC (“Defendant”), in light of his accident. (Id.) Defendant did not engage — 28 — 1 with Plaintiff regarding his request for accommodations. (Id. at 3.) Plaintiff was 2 terminated shortly after, without notice, and was escorted out by security. (Id.) 3 Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity 4 Commission (“EEOC”) on March 7, 2022. (Id. at 5; ECF No. 47, Ex. 1.1) 5 In his Charge, Plaintiff asserts that on or about August 15, 2021, he was 6 hired by Wynn Las Vegas as a Security Officer for Encore, and on or about 7 September 16, 2021, he suffered his injury. (ECF No. 47-1.) He claims he 8 informed Defendant of his medical condition and requested time off for a 9 reasonable accommodation. (Id.) Plaintiff alleges that Defendant failed to engage 10 in an “interactive process.” (Id.) He was placed on unpaid leave for three weeks 11 until he provided medical clearance, and then was terminated on or about 12 October 21, 2021. (Id.) Plaintiff claims that he was terminated based on his 13 perceived disability. (Id.) Based on this Charge, Plaintiff received a Right to Sue 14 Letter. (ECF No. 40 at 5; ECF No. 47-1.) In his SAC, Plaintiff alleges that his 15 formal complaint with the EEOC also alleged wrongful termination and retaliation 16 claims. (ECF No. 40 at 5.) 17 II. ANALYSIS/DISCUSSION 18 Defendant moved to dismiss Plaintiff’s SAC on three main grounds: first, that 19 Plaintiff’s pleadings are deficient under Rule 8 and the standards for amended 20 complaints, second, that Plaintiff failed to exhaust his administrative remedies 21 for several of the causes of actions in the amended complaint, and third, that 22 Plaintiff has failed to state a cognizable claim for defamation. (ECF No. 47.) The 23 Court provides the relevant legal standards and then addresses each claim in 24 turn. — 25 — — 26 — — 27 — 1 The Court agrees with Defendant that it can consider Plaintiff’s Charge of Discrimination at the motion to dismiss — 28 — stage based on Molina v. Los Angeles Cty., Dep’t of Mental Health. 58 Fed.Appx. 311, 313 (9th Cir. 2003). 1 a. LEGAL STANDARD 2 i. Dismissal Under Federal Rule of Procedure 12(b)(6) 3 A court may dismiss a complaint for “failure to state a claim upon which 4 relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must 5 provide “a short and plain statement of the claim showing that the pleader is 6 entitled to relief.” Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 7 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it 8 demands more than “labels and conclusions” or a “formulaic recitation of the 9 elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 10 Twombly, 550 U.S. at 555 ). “Factual allegations must be enough to rise above the 11 speculative level.” Twombly, 550 U.S. at 555 . Thus, to survive a motion to 12 dismiss, a complaint must contain sufficient factual matter to “state a claim to 13 relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 14 U.S. at 570). Under this standard, a district court must accept as true all well15 pleaded factual allegations in the complaint and determine whether those factual 16 allegations state a plausible claim for relief. Id. at 678-79. 17 Allegations by a pro se litigant like Plaintiff are held to a less stringent 18 standard than a formal pleading drafted by lawyers. Hebbe v. Pliler, 627 F.3d 338 , 19 342 (9th Cir. 2010). However, pro se litigants must still follow the same rules of 20 procedure as other litigants, including Rule 8. Maxon v. Mosaic Sales Sols. 21 Holding Co. LLC, No. 2:14-cv-02116-APG-NJK, 2016 WL 973248 (citing King v. 22 Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)). To that end, the Court cannot look to 23 prior pleadings or filings when considering the completeness of an amended 24 complaint. Valadez-Lopez v. Chertoff, 656 F.3d 851, 857 (9th Cir. 2011); see also 25 LR 15-1 (requiring that an amended complaint “must be complete in and of itself 26 without reference to the superseding pleading”). 27 The standard for granting leave to amend from a dismissal for failure to 28 state a claim is generous, such that “a district court should grant leave to amend 1 even if no request to amend the pleading was made, unless it determines that the 2 pleading could not possibly be cured by the allegation of other facts.” Doe v. 3 United States, 58 F.3d 494, 497 (9th Cir.1995) (quoting Cook, Perkiss & Liehe v. 4 N. Cal. Collection Serv., 911 F.2d 242 , 247 (9th Cir.1990)). 5 ii. Exhaustion of Administrative Remedies for ADA, Title VII, 6 and Nevada State Employment Law 7 To bring a Title VII claim in district court, a plaintiff must first exhaust his 8 administrative remedies. 42 U.S.C. § 2000e–5(e)(1); 42 U.S.C. §12117 (ADA and 9 Title VII claims have the same relevant requirements); see also Greenlaw v. 10 Garrett, 59 F.3d 994, 997 (9th Cir. 1995) (citing Brown v. Gen. Servs. Admin., 425 11 U.S. 820 , 832 (1976)). Any claims arising under Nevada employment anti12 discrimination statutes must also be administratively exhausted before filing suit 13 in district court. Blandburg v. Advances Lighting and Elec., Inc., No. 2:19-cv14 01519-RFB-BNW, 2020 WL 5803941 at *3 (D. Nev 2020). A work-sharing 15 agreement between the EEOC and NERC allows for exhaustion of remedies with 16 either agency. Id. 17 The person claiming to be aggrieved must file his charge with the EEOC 18 “within 180 days of the alleged unlawful employment practice,” or if the person 19 claiming to be aggrieved “initially instituted proceedings with the state or local 20 administrative agency, within 300 days of the alleged unlawful employment 21 practice.” Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1104 (9th Cir. 2008) 22 (citing 42 U.S.C. § 2000e–5(e)(1)). If the charge is filed with the EEOC and the 23 EEOC elects not to bring suit based on the filed charge, “the EEOC must ‘notify 24 the person aggrieved’ that she can file suit” which “is accomplished through a 25 right-to-sue-letter.” Id. (citing and quoting 42 U.S.C. § 2000e–5(f)(1)). Following 26 receipt of an EEOC right-to-sue-letter, the aggrieved person then has 90 days to 27 file suit. Id. 28 Allegations of discrimination not included in a plaintiff's administrative 1 charge may not be considered by a court unless the new claims are like or 2 reasonably related to the allegations in the original charge. B.K.B. v. Maui Police 3 Dep't, 276 F.3d 1091, 1100 (9th Cir. 2002) (internal citations removed), as 4 amended (Feb. 20, 2002), overruled on other grounds by Fort Bend Cnty., Tex. v. 5 Davis, 587 U.S. 541 (2019). An allegation in a complaint is “like or reasonably 6 related” to allegations in an administrative charge if the administrative 7 investigation would have grown into examining the additional allegations. Green 8 v. Los Angeles Cnty. Superintendent of Sch., 883 F.2d 1472, 1476 (9th Cir. 1989). 9 Civil claims that “are consistent with the plaintiff's original theory of the case” are 10 like and reasonably related to the complaint. B.K.B., 276 F.3d at 1100 (citing 11 E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994)). This includes 12 considering “such factors as the alleged basis of discrimination, dates of 13 discriminatory acts specified within the charge, perpetrators of discrimination 14 named in the charge, and any locations at which discrimination is alleged to have 15 occurred.” Vasquez v. Cnty of L.A., 349 F.3d 634, 644 (9th Cir. 2003). 16 A district court will construe these charges with the “utmost liberality” in 17 the plaintiff’s favor. Sanders v. Sodexo, Inc., No. 2:15-cv-00371-JAD-GWF, 2015 18 WL 4477697 (D. Nev 2015) (citing Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 19 1990)). If a claim is found to be unexhausted, and Plaintiff cannot possibly cure 20 the deficiencies, it is proper for the court to dismiss those claims with prejudice. 21 Zeddies v. Clark Cnty. Sch. Dist., No. 2:20-cv-00477-GMN-NJK, 2021 WL 181172 22 at *5; see also McKimmey v. Du-Par’s Resorts, Inc., 2015 WL 3815510 at *2 23 (holding where plaintiff fails to exhaust administrative remedy, Title VII leave to 24 amend is futile and can be dismissed with prejudice). 25 iii. The SAC is Dismissed in Its Entirety as Procedurally 26 Defective. 27 Defendant correctly asserts that Plaintiff’s complaint fails to comply with 28 Rule 8 and local rules. In analyzing a motion to dismiss, the Court will only 1 consider the facts alleged in the operative complaint, which must stand on its 2 own. 3 The main problem with Plaintiff’s SAC is that it refers to earlier factual 4 allegations that are not included. This Court earlier dismissed Plaintiff’s original 5 complaint with leave to amend. (ECF No. 24.) Plaintiff subsequently filed an 6 amended complaint and then sought leave to amend, which the Court granted. 7 (ECF No. 36.) In his SAC, Plaintiff states that his filing is “a more structured 8 breakdown of the claims and key legal arguments incorporated into [his] 9 amended complaint.” (ECF No. 40.). As stated, an amended complaint “must be 10 complete in and of itself without reference to the superseding pleading.” LR 1511 1. Plaintiff’s SAC violates this rule by referring to allegations from earlier 12 complaints. Plaintiff also filed a “Declaration in Support of Plaintiff’s Opposition 13 to Defendant’s Motion for Summary Judgment” (“Declaration”) which refers to 14 facts in his original complaint that were not included in his SAC. (ECF No. 54.) 15 Because the Court’s analysis of the sufficiency of Plaintiff’s claims is limited to 16 what he alleged in his SAC, such other facts cannot be considered. (Id.) 17 With this in mind, Plaintiff’s SAC lacks the factual foundations that the 18 Court identified in previous filings and makes several conclusory statements of 19 law. 20 Due to these errors, the Court dismisses the SAC in its entirety. Such a 21 dismissal is generally without prejudice and with leave amend unless amendment 22 would be futile. The Court addresses below with respect to each claim whether 23 dismissal is with leave to amend. 24 b. Claims Analysis 25 Defendant argues that each of Plaintiff’s claims is unexhausted, time26 barred, and/or fails to state a claim. Having concluded that the SAC must be 27 dismissed in its entirety, the Court addresses these issues for the purpose of 28 determining which claim are dismissed with leave to amend. 1 Regarding exhaustion, the Court relies on Plaintiff’s EEOC charge on 2 March 7, 2022, to determine whether the claims in Plaintiff’s SAC are reasonably 3 related to his EEOC claims. Defendant argues that Plaintiff’s EEOC charge failed 4 to allege claims of discrimination on the basis of race, a hostile work environment, 5 or retaliation and should therefore be dismissed as unexhausted. (ECF No. 47 at 6 9.) 7 i. Racial Discrimination Under Title VII 8 In his SAC, Plaintiff alleges that he was treated differently from other 9 employees based on race. To state a claim for racial discrimination under Title 10 VII, the court applies the McDonnell Douglas burden shifting framework. 11 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The plaintiff must show 12 that (1) he is a member of a protected class, (2) he was performing according to 13 his employer’s expectations, (3) he suffered an adverse employment action, and 14 (4) other employees with similar qualifications similar to the plaintiff’s were 15 treated more favorably. Id. at 802 . 16 The Ninth Circuit has held that new claims of race discrimination under 17 Title VII do not generally relate-back to a properly exhausted ADA claim because 18 (1) they are not like or reasonably related to allegations of ADA discrimination 19 and would not fall within the scope of an investigation that reasonably could be 20 expected to grow out of an ADA violation and (2) they arise out of a distinct 21 statutory scheme. Bower v. City and Cnty. of S.F., 490 Fed.Appx854, 856-857 22 (9th Cir. 2012) (citing Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 675 (9th 23 Cir. 1988)). 24 Plaintiff has not stated sufficient facts to make this claim in his SAC. He 25 does not allege that he is a member of a protected class, that he was performing 26 according to his employer’s expectations, or that employees with similar 27 qualifications were treated more favorably. In his comparison to other employees, 28 he mentions that other employees that were injured were not terminated but does 1 not compare other aspects of their status. (ECF No. 40 at 4.) 2 Additionally, Plaintiff’s allegations for racial discrimination were not stated 3 in his original EEOC charge. Plaintiff’s allegations focus solely on his injury 4 outside of the workplace, request for a reasonable accommodation, and belief that 5 he was discriminated against for a perceived disability. (ECF No. 47-1.) He only 6 lists “disability” in the section entitled “Discrimination Based On.” (Id.) Because 7 these claims are not reasonably related to his original allegations of disability 8 discrimination and they arise out of a distinct statutory scheme, they do not 9 relate-back to Plaintiff’s EEOC charge. Therefore, Plaintiff’s Title VII claim is 10 dismissed with prejudice. 11 ii. Hostile Work Environment Under Title VII 12 Plaintiff alleges that he experienced verbal and physical harassment by 13 trainers within the Special Operation Guard based on his race or disability. In 14 order to state a claim for a hostile work environment under Title VII, plaintiff 15 must prove that (1) he was subjected to verbal or physical conduct because of 16 race or disability; (2) this conduct was unwelcome; and (3) this conduct was 17 sufficiently severe or pervasive to alter the conditions of employment and create 18 an abusive working environment. Surrell, 518 F.3d at 1108 . Courts will consider 19 all the circumstances, including frequency of the allegedly discriminatory 20 conduct, its severity, and whether it reasonably interferes with an employee’s 21 work performance. Id. (citing Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th 22 Cir. 2000)). 23 Plaintiff has not stated sufficient facts to make this claim in his SAC. In his 24 Complaint, he writes, “there were signs of verbal or physical harassment or 25 discriminatory treatment based on the plaintiff’s race or disability before or after 26 the accident via Mr. Keith.” (ECF No. 40 at 4.) This statement fails to allege facts 27 and is conclusory. 28 In his EEOC filing, Plaintiff only alleges that Defendant failed to provide 1 accommodations, failed to communicate reasoning behind its decision to place 2 him on leave, and terminated his employment. (ECF No. 47-1.) None of these 3 allegations would put the EEOC on notice in an investigation that Plaintiff 4 suffered under a hostile work environment. Therefore, Plaintiff has not exhausted 5 his administrative remedies under Title VII and this claim is dismissed with 6 prejudice. 7 iii. Wrongful Termination Under Nevada State Law 8 Plaintiff alleges that his firing violates “state employment laws.” (ECF 40 at 9 3.) Nevada employees are presumed to be at will, and an employer can discharge 10 an employee with or without cause, provided the dismissal does not offend 11 Nevada’s public policy. Sanders v. Sodexo, Inc., No. 2:15-cv-371-JAD-GWF, 2015 12 WL 4477697 at *3 (D. Nev 2015) (citing State v. Eighth Judicial Dist. Court. Ex rel. 13 Cnty of Clark, 42 P.3d 233, 240 (Nev. 2002)). Public policy may be violated when 14 an employee is terminated for (1) refusing to violate the law, (2) performing jury 15 duty, (3) filing a workers’ compensation claim or seeking industrial insurance, (4) 16 refusing to work in unreasonable and dangerous conditions, and (5) whistle 17 blowing. Id. The tort of wrongful termination is designed to fill the gap when no 18 other statutory remedy has been provided and is otherwise not available to the 19 plaintiff. Id. (citing Osawa v. Vision Airlines, Inc., 215 P.3d 788, 791 (Nev. 2009)). 20 Plaintiff has failed to establish sufficient facts for wrongful termination 21 under Nevada state law. Here other statutory remedies are or were available. 22 Simply stating that his termination was without notice and with a security escort 23 is not enough to conclude that public policy has been violated. Although he states 24 that “evidence should show that the termination was tied to the plaintiff’s 25 disability,” Plaintiff does not actually allege any facts that demonstrate a causal 26 link between the two. (ECF No. 40 at 5.) 27 Because it is not clear that amendment of this claim is futile, the Court 28 dismisses Plaintiff’s claim for wrongful termination under Nevada state law 1 without prejudice and with leave to amend. 2 iv. Disability Discrimination Under the ADA 3 To set forth a disability discrimination claim, a plaintiff must first establish 4 that: (1) he is disabled within the meaning of the ADA; (2) he is a qualified 5 individual (i.e., able to perform the essential functions of the job with or without 6 reasonable accommodation); and (3) he suffered an adverse employment action 7 because of his disability. Babiak v. Nev. ex rel. Dept. of Tax’n, 554 F.Supp.2d 8 1187, 1191 (D. Nev. 2008); see also Nunies v. HIE Holdings, Inc., 908 F.3d 428 , 9 433 (9th Cir. 2018) (disability includes “being regarded as having” an 10 impairment). Defendant argues that Plaintiff has failed to establish that he was 11 a qualified individual. (ECF No. 47 at 13.) 12 The ADA, as amended by the ADA Amendments Act of 2008 (ADAAA), 13 defines “disability” as: (A) a physical or mental impairment that substantially 14 limits one or more major life activities; (B) a record of such an impairment; or (C) 15 being regarded as having such an impairment. 42 U.S.C § 12102(1). 16 A “qualified individual,” is an individual who: (1) satisfies the requisite skill, 17 experience, education and other job-related requirements of the position; and (2) 18 can perform the essential functions of the employment position with or without 19 an accommodation. 42 U.S.C. § 12111 (8). 20 The plaintiff must also show that the adverse action would not have 21 occurred but for the disability. Murray v. Mayo Clinic, 934 F.3d 1101, 1107 (9th 22 Cir. 2019). A plaintiff need not have direct evidence to establish “but for” 23 causation, and causation may be inferred from timing alone where an employee 24 is terminated shortly after his employer discovers that he is disabled. See O'Brien 25 v. R.C. Willey Home Furnishings, 748 Fed. Appx. 721 , 723 (9th Cir. 2018); Davis 26 v. Team Elec. Co., 520 F.3d 1080, 1094 (9th Cir. 2008). 27 The Court agrees with Defendant that Plaintiff has failed to allege sufficient 28 facts to demonstrate he is a qualified individual in his SAC. Plaintiff does not 1 identify the essential functions of his position or whether he was able to perform 2 them with or without accommodations in his complaint. He makes a conclusory 3 statement that his injury and resulting disability “must be the reason for the 4 termination” without describing other details that led him to that conclusion. 5 (ECF No. 40 at 3.) Plaintiff does allege more facts regarding his termination and 6 essential functions of his position in his Declaration, which the Court does not 7 consider in this Order. (ECF No. 54.) 8 Therefore, Plaintiff’s claim for disability discrimination is dismissed without 9 prejudice and with leave to amend with a sufficient factual basis. The Court 10 discusses the particulars of each theory that Plaintiff raises below. 11 1. Failure to Provide Reasonable Accommodation 12 Failing to provide a reasonable accommodation is an act of discrimination 13 under the ADA if the employee is a qualified individual, the employer receives 14 adequate notice, and a reasonable accommodation is available. Lezama v. Clark 15 County, 817 Fed.Appx. 341 , 344-345 (9th Cir. 2020). “Once an employer becomes 16 aware of the need for accommodation, that employer has a mandatory obligation 17 under the ADA to engage in an interactive process with the employee to identify 18 and implement appropriate reasonable accommodations.” Humphrey v. Mem’l 19 Hosps. Ass’n, 239 F.3d 1128, 1137 (9th Cir. 2001). There is no stand-alone claim 20 for failing to engage in the interactive process. Salehian v. Nev. State Treasurer’s 21 Off., 618 F.Supp.3d 995 , 1012 (D. Nev. 2022) (citing Snapp v. United Transp. 22 Union, 889 F.3d 1088, 1095 (9th Cir. 2018)). Further, there is no duty to 23 accommodate an employee who makes a claim based on perceived disability. 24 Kaplan v. City of North Las Vegas, 323 F.3d 1226, 1232-33 (9th Cir. 2003). 25 Defendant argues that in addition to insufficient pleading on the issue of being a 26 qualified individual, Plaintiff also failed to allege that he requested an 27 accommodation or that the Defendant knew of his requested accommodation. 28 (ECF No. 47 at 14.) 1 As stated above, Plaintiff has not sufficiently alleged the first or second 2 elements of his prima facie case: that he is disabled and that he is a qualified 3 individual under the ADA’s definition. As discussed in this Court’s previous Order 4 (ECF No. 24), and critical to his claim of failure to accommodate, Plaintiff has still 5 not made clear in his SAC whether he is pursuing his ADA claim on a theory of 6 actual or perceived disability. This determination will affect whether the claim on 7 failure to provide accommodations is available, because accommodation is only 8 required for individuals with an actual disability. 9 If Plaintiff claims that he was discriminated against based on an actual 10 disability, he has exhausted this remedy in his EEOC charge. In the charge, 11 Plaintiff says that he “informed [Defendant] regarding my condition and need of 12 time off for a reasonable accommodation” and that “[Defendant] failed to engage 13 in the interactive process.” (ECF No. 47-1.) 14 Plaintiff alleges in his SAC that Defendant failed to provide reasonable 15 accommodations that he may have requested, such as modified hours, lighter 16 duties, or temporary reassignment. (ECF No. 40 at 2.) Requesting a leave of 17 absence for medical treatment may be a reasonable accommodation under the 18 ADA. LeBarron v. Interstate Grp., LLC, 529 F.Supp.3d 1163 , 1172 (D. Nev. 2021). 19 He also claims that Defendant “failed to discuss these accommodations or provide 20 any meaningful adjustments.” Id. Plaintiff did not state the accommodations that 21 he requested or Defendant’s response with a sufficient factual basis. Because his 22 claim of failure to accommodate an actual disability is not futile under Plaintiff’s 23 EEOC charge, it is dismissed without prejudice and with leave to amend. 24 2. Wrongful Termination 25 A plaintiff is wrongfully terminated under the ADA if, in addition to 26 demonstrating that he is a qualified individual, he proves that the employer 27 terminated him because of his disability. Nunies v. HIE Holdings, Inc., 908 F.3d 28 428, 433 (9th Cir. 2018). Defendant does not raise an argument related to 1 wrongful termination in its motion. 2 In his SAC, Plaintiff writes that Defendant “terminated the plaintiff based 3 on his need for medical leave, accommodations, or disability.” (ECF No. 40 at 2.) 4 He alleges that the lack of “formal termination documentation and the use of 5 security personnel to escort the plaintiff out of the workplace suggests” an 6 unlawful termination process. The first allegation is a conclusory statement that 7 does not satisfy the Twombly standard. The second allegation is insufficient to 8 state a claim for wrongful termination under the ADA. 9 In his EEOC charge, Plaintiff alleges that he told Defendant about his 10 injury, was placed on unpaid leave, and terminated when he returned “with no 11 explanation.” (ECF No. 47-1.) He concludes that he believes he was discriminated 12 against for his perceived disability. Id. Accordingly, it would not be futile for 13 Plaintiff to amend this claim because his EEOC charge, construed with the 14 “utmost liberality,” alleged a complaint for wrongful termination under the ADA. 15 Plaintiff’s wrongful termination claim will therefore be dismissed without 16 prejudice and with leave to amend. 17 3. Retaliation 18 Plaintiff alleges that he was retaliated against for reporting his injury and 19 requesting accommodations. To state a claim for retaliation under the ADA, a 20 plaintiff must show that “(1) he engaged in a protected activity; (2) his employer 21 subjected him to an adverse employment action; and (3) a causal link exists 22 between the protected activity and the adverse action.” Pardi v. Kaiser Found. 23 Hosps., 389 F.3d 840, 849 (9th Cir. 2004) (citing Brown v. City of Tucson, 335 24 F.3d 1181 , 1186 (9th Cir. 2003)); see also Campos v. Town of Pahrump, 274 25 F.Supp.3d 1106 , 1115 (D. Nev. 2017). 26 In his SAC, Plaintiff alleges that the act of being walked out of his workplace 27 by security “may suggest” that Defendant “was attempting to intimidate or 28 retaliate against the plaintiff for reporting his injury or requesting 1 accommodations.” (ECF No. 40 at 4.) He also alleges that “the immediate 2 termination after the plaintiff reported the injury or reported accommodations 3 must be viewed as an act of retaliation under the ADA and state employment 4 laws.” (Id.) Because his claims of retaliation are conclusory, Plaintiff has stated 5 insufficient facts to make this claim in his SAC. 6 In his EEOC charge, Plaintiff describes informing Defendant of his injury, 7 requesting an accommodation, and then subsequently being terminated without 8 explanation within a matter of weeks. While Defendant cites several cases that 9 show that Plaintiff did not check a box that said “retaliation,” there is not an 10 indication that there was a similar option on Plaintiff’s form. (See ECF Nos. 47 at 11 12, 47-1.) The facts provided establish the basic elements of a retaliation claim: 12 Plaintiff engaged in a protected activity by requesting accommodations, he 13 suffered an adverse employment action in his termination, and he claims he was 14 discriminated against for his perceived disability. These are all reasonably related 15 to Plaintiff’s original charge of discrimination. The Court finds that Plaintiff has 16 sufficiently exhausted his claim for retaliation under the ADA and Nevada state 17 employment law, and therefore it would not be futile for Plaintiff to amend this 18 claim. 19 Plaintiff’s retaliation claim will be therefore dismissed without prejudice 20 and with leave to amend. 21 v. Defamation Under Nevada State Law 22 Plaintiff’s defamation claim alleges that he was escorted out of his 23 workplace by security, without other termination procedures or a private 24 conversation, and claims that this was a form of public humiliation intended to 25 intimidate. (ECF No. 40 at 5.) Defendant argues that escorting the Plaintiff off the 26 premises was not defamatory and that Plaintiff’s claim is untimely. (ECF No. 47 27 at 16). 28 To establish a prima facie case of defamation, a plaintiff must prove: (1) the 1 defendant made a false and defamatory statement about the plaintiff; (2) “an 2 unprivileged publication to a third person;” (3) “fault, amounting to at least 3 negligence;” and (4) “actual or presumed damages.” Rosen v. Tarkanian, 135 Nev. 4 436, 442 (Nev. 2019). “Words or conduct or the combination of words and 5 conduct can communicate defamation.” K–Mart Corp. v. Wash., 866 P.2d 274 , 6 282–83 (Nev. 1993) (store security officer walking the plaintiff through the store 7 in handcuffs constituted slander per se because that conduct suggested that the 8 plaintiff was a shoplifter), overruled in part on other grounds by Pope v. Motel 6, — 9 — 114 P.3d 277 (Nev. 2005); see also Tsao v. Desert Palace, Inc., 698 F.3d 1128 , 10 1148 (9th Cir. 2012) (applying Nevada law and holding questions of fact remained 11 regarding whether casino security officer defamed the plaintiff by handcuffing 12 and removing her from the casino in view of other patrons); McCall v. Las Vegas 13 Metro Police Dept., No. 2:18-cv-01319-APG-EJY, 2020 WL 14333579 at *19 14 (applying Nevada law and holding that a reasonable jury could find officers 15 defamed patron by holding him in handcuffs while patrons observed him). 16 The statute of limitations for defamation in Nevada is two years. NRS 17 11.190(4)(c). Filing a charge with the EEOC does not toll the statute of limitations 18 on state tort law claims. Fox v. Sysco Corp., No. 2:11-cv-00424-RLH-PAL, 2011 19 WL 5838179 at *4 (citing Arnold v. United States, 816 F.2d 1306, 1313 (9th Cir. 20 1987)) (holding that the statute of limitations for plaintiff’s claims for tortious 21 discharge, intentional infliction of emotional distress, and negligent hiring, 22 retention, and supervision was not tolled by his EEOC charge). 23 Because the Court agrees that Plaintiff’s claim for defamation is time24 barred, it does not address the sufficiency of the allegations. Plaintiff alleges that 25 he was terminated on October 21, 2021, at which time he was escorted off 26 Defendant’s premises. (ECF Nos. 40 at 4, 47-1). Plaintiff was required to bring 27 his defamation claim within two years of that incident. Plaintiff filed this suit on 28 December 21, 2023, after the two-year statute of limitations had elapsed. (ECF 1 No. 1.) Title VII does not toll claims that exist outside of its statutory scheme, 2 even based on the same facts. See Johnson v. Ry. Express Agency, Inc., 421 U.S. 3 454, 465-466 (1975). Therefore, this Court finds that this claim is time-barred 4 and dismisses it with prejudice. 5 c. Motion in Limine 6 Plaintiff filed a motion in limine to exclude evidence regarding his past legal 7 disputes and employment history. (ECF No. 43.) In its Opposition, Defendant 8 notes that the timing of the Plaintiff’s motion is premature, because discovery is 9 still ongoing and trial has not been scheduled. (ECF No. 49.) The Court agrees 10 with Defendant that Plaintiff’s motion in limine is premature. Accordingly, the 11 Court denies the motion without prejudice. 12 d. Motion for Class Certification 13 Plaintiff filed a motion for class certification. (ECF No. 56.) Before certifying 14 a class under Federal Rule of Civil Procedure 23, a district court must determine 15 if the proposed class is (1) so numerous that joinder of all members is 16 impracticable; (2) there are questions of law or fact common to the class; (3) the 17 claims or defenses of the representative parties are typical of the claims or defense 18 of the class; (4) the representative parties will fairly and adequately protect the 19 interests of the class. Fed. R. Civ. P. 23(a). The burden is on the plaintiff to “prove 20 the facts necessary” to establish all four prerequisites “by a preponderance of the 21 evidence.” Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 22 651, 665 (9th Cir. 2022). Finally, pro se litigants have the right to plead and 23 conduct their own cases personally, which only extends to representing 24 themselves. Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008) 25 (collecting cases). Plaintiff, therefore, may not act as an attorney or in any other 26 representative capacity for anyone else by litigating on behalf of a class, so his 27 motion must be denied. Because the Court resolves Plaintiff’s motion on this — 28 — 1 threshold matter, it does not analyze the merits of class certification under FRCP 2 23. 3 III. CONCLUSION 4 For the reasons stated, the Court dismisses Plaintiff’s Second Amended 5 Complaint in its entirety for failure to sufficiently allege any viable claims. 6 Because Plaintiff failed to exhaust his claims for racial discrimination and hostile 7 work environment under Title VII, amendment of those claims would be futile 8 and they are dismissed with prejudice. Plaintiff’s defamation claim is dismissed 9 with prejudice because it is time-barred. Plaintiff will have until October 18, 10 2025, to file an amended complaint. 11 It is therefore ordered that Defendant’s Motion to Dismiss (ECF No. 47) is 12 GRANTED. 13 It is also ordered that Plaintiff’s claims for racial discrimination and hostile 14 work environment under Title VII and defamation under Nevada state law are 15 DISMISSED WITH PREJUDICE and without leave to amend. 16 It is also ordered that Plaintiff’s ADA claims for failure to accommodate, 17 retaliation, and wrongful termination, and his Nevada claim for wrongful 18 termination and retaliation are DISMISSED WITHOUT PREJUDICE and with 19 leave to amend. 20 It is also ordered that Plaintiff’s Motion in Limine (ECF No. 43) is DENIED 21 without prejudice. 22 It is also ordered that Plaintiff’s Motion for Class Certification (ECF No. 56) 23 is DENIED. 24 It is also ordered that Defendant’s Motion for Summary Judgment (ECF No. 25 94) is DENIED as moot. 26 It is also ordered that Defendant’s Motion to Extend Time (ECF No. 99) is 27 GRANTED. 28 // 1 Dated this 18 day of September 2025. — 2 — 4 ANNER.TRAUM 5 UNITED STATES DISTRICT JUDGE — 6 — — 7 — — 8 — — 9 — — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —