Wall v. NSB East Bonanza

[4] UNITED STATES DISTRICT COURT [5] DISTRICT OF NEVADA [6] * * * [8] ESLER WALL, Case No. 2:20-cv-00391-RFB-DJA [9] Plaintiff, [10] ORDER [11] v. [12] 13 NSB EAST BONANZA LLC d/b/a TACO BELL 31880, [14] Defendant. [17] I. INTRODUCTION [18] Before the Court is Defendant’s Motion for Judgment on the Pleadings, or Alternatively, [19] for Summary Judgment. ECF No. 19. For the reasons stated below, the motion is GRANTED. [21] II. PROCEDURAL HISTORY [22] Plaintiff filed the instant suit in state court on November 14, 2019. ECF No. 2, Ex. A. On [23] February 25, 2020, Defendant removed the case to this Court. ECF No. 1. [24] On January 5, 2021, Magistrate Judge Albregts ordered that a Discovery Plan/Scheduling [25] Order would be due by April 17, 2021. ECF No. 13. On January 25, 2021, Judge Albregts extended [26] the deadline for the Discovery Plan/Scheduling Order, in light of representations made by the [27] parties that pro se Plaintiff could not meet the deadline for personal reasons. ECF No. 15. [1] On July 19, 2021, Defendant filed the instant Motion for Judgment on the Pleadings. ECF [2] No. 19. To date, Plaintiff has not filed a Response to the motion. [3] On August 25 and 26, 2021, Defendant filed a Motion for Hearing before Judge Albregts [4] regarding the discovery schedule. ECF Nos. 22, 24. On August 30, 2021, Plaintiff sought another [5] extension of the discovery schedule. ECF No. 25. A hearing was set on the parties’ motions for [6] October 8, 2021. ECF No. 29. [7] On October 12, 2021, Judge Albregts entered an Order to Show Cause. ECF No. 31. The [8] Order indicated that Judge Albregts permitted Plaintiff to appear for the October 8 hearing [9] telephonically, in light of Plaintiff’s personal challenges, but Plaintiff failed to call in and failed to [10] notify the Court that she would not be able to attend. Id. The Order instructed Plaintiff to notify [11] the Court within one week as to why she failed to comply with the Court’s order. Id. [12] On October 15, 2021, Plaintiff filed a notice with the Court indicating that she did not [13] receive notice of the October 8 hearing. ECF No. 32. Plaintiff also requested an indefinite stay of [14] the case, in light of various personal difficulties. ECF No. 33. On October 28, 2021, Judge Albregts [15] scheduled another hearing on Defendant’s request for a pretrial scheduling conference and on [16] Plaintiff’s motions for postponements. ECF No. 35. The Order again provided instructions to [17] Plaintiff for telephonic appearance. Id. Plaintiff again failed to appear. ECF No. 36. [18] On November 17, 2021, Judge Albregts entered an Order staying discovery until February [19] 21, 2022 and setting a final hearing for February 21, 2022. ECF No. 37. The Order indicated that [20] failure to appear at the hearing may result in “a recommendation to the district judge that this case [21] be dismissed.” ECF No. 37. The hearing was later reset to February 25, 2022. ECF No. 42. [22] On February 3, 2022, this Court set a hearing on Defendant’s Motion for Judgment on the [23] Pleadings, for February 11, 2022. ECF No. 43. Plaintiff represented to the Court that she could not [24] attend the hearings for personal reasons, but did not indicate a later date by which she could appear [25] for a hearing. The Court subsequently vacated the hearing. [26] This order follows. [1] III. ALLEGED FACTS [2] The following allegations are derived from Plaintiff’s Complaint, ECF No. 2, Ex. A. [3] Plaintiff was a Taco Bell employee from 2005 to 2018. During her tenure with Taco Bell, [4] Plaintiff was an exemplary employee. Over the years, she received written and oral [5] commendations, as well as gifts from her manager for her work performance. [6] Plaintiff noticed that as she got older, her work duties were slowly taken away from her by [7] managerial staff at the franchise location at which she worked. Plaintiff was no longer permitted [8] to work the drive-through or to prepare food. She was only permitted to work as a front cashier. [9] She also had her work hours restricted to the weekends and was no longer permitted to work eight [10] hours per day, five days a week. [11] Plaintiff also began to experience verbal abuse and harassment at work. In December 2017, [12] the assistant manager at the restaurant told her to “bring a doctor’s note to prove you are not crazy.” [13] A general manager also took one of Plaintiff’s working days away from her, causing Plaintiff to [14] suffer from a panic attack/hyperventilation at work. The general manager then accused Plaintiff of [15] “pretending,” and cursed at her in front of customers. During one verbal dispute with Plaintiff, the [16] assistant manager threatened Plaintiff that he would “pull up the tape to prove what you said two [17] weeks ago is not what you are saying now,” ostensibly referring to the restaurant’s video [18] surveillance. Plaintiff felt that this was a threatened violation of her privacy. [19] Plaintiff was terminated from her job on January 14, 2018. [20] Plaintiff has experienced post-traumatic stress disorder as a result of her negative treatment [21] and termination. Due to her termination and inability to secure new work, Plaintiff could not afford [22] to care for her pets, who passed away as a result. [23] Plaintiff lodged a complaint with the Equal Employment Opportunity Commission and [24] received a right to sue letter on August 14, 2019. ECF No. 2, Ex. A. [26] IV. LEGAL STANDARD [27] A party may move for judgment on the pleadings “after the pleadings are closed—but early [1] enough not to delay trial.” Fed. R. Civ. P. 12(c). “Analysis under Rule 12(c) is substantially [2] identical to analysis under Rule 12(b)(6) because, under both rules, a court must determine whether [3] the facts alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy.” Chavez v. [4] United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (citation and internal quotation marks omitted). [5] In ruling on a 12(c) motion, “all well-pleaded allegations of material fact in the complaint [6] are accepted as true and are construed in the light most favorable to the non-moving party.” [7] Faulkner v. ADT Sec. Services, Inc., 706 F.3d 1017, 1019 (9th Cir. 2013) (citations omitted). The [8] complaint need not contain “detailed factual allegations,” but it must do more than assert “labels [9] and conclusions” or “a formulaic recitation of the elements of a cause of action . . . .” Ashcroft v. [10] Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 , 555 [11] (2007)). In other words, a claim will not be dismissed if it contains “sufficient factual matter, [12] accepted as true, to state a claim to relief that is plausible on its face,” meaning that the court can [13] reasonably infer “that the defendant is liable for the misconduct alleged.” Id. at 678 (internal [14] quotation and citation omitted). The plaintiff must allege non-conclusory facts that, together with [15] reasonable inferences from those facts, are “plausibly suggestive of a claim entitling the plaintiff [16] to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). [17] Summary judgment is appropriate "if the movant shows there is no genuine issue as to any [18] material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The [19] substantive law governing a matter determines which facts are material to a case. Anderson v. [20] Liberty Lobby, 477 U.S. 242, 248 (1986). [22] V. PARTIES’ ARGUMENTS [23] Defendant argues that dismissal of this matter is proper because (1) Plaintiff has not stated [24] a cognizable claim under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 [25] et seq.; (2) Plaintiff has not stated a cognizable Title VII claim for race discrimination, 42 U.S.C. [26] § 2000e-2; and (3) Plaintiff has not stated a cognizable claim under the Electronic Communications [27] Privacy Act (ECPA), 18 U.S.C. § 2510 , et seq. [1] With respect to any claim for age discrimination, Defendant argues that Plaintiff has not [2] alleged any facts from which this Court could conclude she was fired due to her age. Defendant [3] argues that Plaintiff does not state her age in the complaint, Plaintiff does not allege any [4] discrimination by Taco Bell via age restrictions or comments from supervisors that she was too [5] old for the job, and Plaintiff does not allege facts that could give rise to an inference of age [6] discrimination, such as that she was replaced by a younger employee. Defendant contends that [7] Plaintiff’s sole allegation regarding age discrimination is the following sentence in the Complaint: [8] “I am asking this Court to allow me relief to pursue legally . . . EEOC Charges for Discriminations [9] under Race, Age Retaliation.” [10] Defendant further argues that Plaintiff has not stated a cognizable Title VII race [11] discrimination claim, because she does not allege any facts from which the Court could conclude [12] she was fired due to her race. Defendant notes that Plaintiff does not indicate her own race and [13] does not allege she received differential treatment as compared to similarly situated employees of [14] a different race. Defendant again notes that Plaintiff’s sole allegation regarding race discrimination [15] is the following sentence from the Complaint: “I am asking this Court to allow me relief to pursue [16] legally . . . EEOC Charges for Discriminations under Race, Age Retaliation.” [17] Finally, Defendant argues that Plaintiff has not alleged a cognizable claim under the ECPA. [18] Defendant contends that Plaintiff’s complaint does not allege facts from which it can be inferred [19] that she had a reasonable expectation of privacy in the oral communications that Taco Bell [20] allegedly recorded. Defendant notes that Plaintiff does not allege any facts which show (1) the [21] substance of any recorded communications, (2) to whom any allegedly recorded communications [22] were made, (3) when any communications were made, or (4) Plaintiff's location when she made [23] any alleged communications. Nor does Plaintiff allege that any recording was made without her [24] knowledge. Defendant argues that an ECPA claim is thus facially deficient. [25] In the alternative, Defendant moves for summary judgment on the ADEA, Title VII, and [26] ECPA claims. Defendant argues there is no evidence to support a prima facie case of age [27] discrimination because Plaintiff cannot establish that she was performing her job satisfactorily or [1] that she was discharged under circumstances giving rise to an inference of age discrimination. [2] Defendant argues that the unrebutted evidence in the record shows that Plaintiff was performing [3] her job duties poorly at the time of her termination, and that she was terminated for poor work [4] performance, for making physical threats to her co-workers, and for engaging in insubordination. [5] Defendant argues that summary judgment is also warranted on Plaintiff’s Title VII claim [6] because the undisputed evidence shows that Plaintiff performed her job duties unsatisfactorily, and [7] she was terminated as a result. Defendant further argues there is no evidence that Taco Bell treated [8] Plaintiff differently from similarly situated employees of different races. [9] Finally, Defendant argues there is no evidence that Taco Bell ever intercepted or recorded [10] a communication made by Plaintiff under circumstances where Plaintiff had a subjective or [11] objective expectation of privacy. Because Plaintiff cannot provide any admissible evidence which [12] shows that Taco Bell secretly recorded her in violation of the ECPA, Defendant argues that [13] summary judgment is warranted on Plaintiff’s ECPA claim. [15] VI. DISCUSSION [16] For the reasons stated below, the Court accepts Defendant’s arguments and dismisses [17] Plaintiff’s Complaint in its entirety. [18] a. Age Discrimination Claim [19] The Court first addresses Plaintiff’s age discrimination claim. Under the ADEA, to allege [20] a prima facie case of age discrimination, a party must state that she “was (1) at least forty years [21] old, (2) performing [her] job satisfactorily, (3) discharged, and (4) either replaced by substantially [22] younger employees with equal or inferior qualifications or discharged under circumstances [23] otherwise giving rise to an inference of age discrimination.” Diaz v. Eagle Produce, Ltd., 521 F.3d 24 1201, 1207 (9th Cir. 2008). [25] First, while Plaintiff’s EEOC filings indicate that she was seventy-two years old at the time [26] of her termination, she has not actually stated her age in the Complaint. Further, the Court finds [27] that Plaintiff has not sufficiently alleged any facts that would give rise to an inference of age [1] discrimination. Plaintiff alleges that as she got older, she was no longer allowed to work five days [2] a week or to take on certain work duties at Taco Bell; however, there is no indication that these [3] changes to Plaintiff’s working conditions were spurred by her age. Plaintiff does not allege that [4] employees or managers ever remarked on her age, that the workplace implemented any age-related [5] policies (whether in general or specifically targeted towards her), that she was replaced by younger [6] employees, or that younger employees were treated better than her. Plaintiff’s sole allegation [7] regarding age discrimination is that she had her roles reduced as she got older. That allegation, [8] standing alone, is insufficient to meet the pleading standard required to survive a motion for [9] judgment on the pleadings. See Moss, 572 F.3d at 969 (stating that a plaintiff must allege non10 conclusory facts). [11] b. Race Discrimination and Retaliation [12] Plaintiff also alleges a federal race discrimination claim. A plaintiff establishes a prima [13] facie case of Title VII race discrimination by offering proof: (1) that the plaintiff belongs to a class [14] of protected persons; (2) that the plaintiff was qualified for his or her position and performed his [15] or her job satisfactorily; (3) that the plaintiff suffered an adverse employment action; and (4) that [16] the plaintiff's employer treated the plaintiff differently from a similarly situated employee who [17] does not belong to the same protected class as the plaintiff. Cornwell v. Electra Cent. Credit Union, [18] 439 F.3d 1018, 1028 (9th Cir. 2006). [19] Here, Plaintiff has failed to allege that she belongs to a protected class. While her EEOC [20] filings suggest that she is white, the Complaint does not indicate what her race is. Further, while [21] Plaintiff alleges that she performed her job duties satisfactorily at the time of her termination, she [22] does not allege that Taco Bell treated her differently than a similarly situated employee or [23] employees of a different race. Plaintiff has not alleged that she was subjected to racially derogatory [24] comments of any kind, nor that she was the victim of racially discriminatory workplace policies. [25] Given that Plaintiff’s complaint is wholly devoid of any factual allegations of race discrimination, [26] Plaintiff’s Title VII claim is dismissed. [27] Plaintiff also appears to allege a claim for retaliation. The Complaint does not contain a [1] single factual allegation regarding retaliation. As such, any retaliation claim is dismissed. [2] c. ECPA and NRS 200.650 [3] Finally, Plaintiff appears to allege that her privacy rights were violated. While it is not clear [4] whether Plaintiff alleges the violation of a right conferred by state or federal law, Plaintiff does [5] cite NRS § 200.650. [6] NRS § 200.650 provides that “a person shall not intrude upon the privacy of other persons [7] by surreptitiously listening to, monitoring or recording . . . by mechanical, electronic or other [8] listening device, any private conversation engaged in by the other persons . . . . unless authorized [9] to do so by one of the persons engaging in the conversation.” NRS § 200.650 is a criminal statute [10] and Plaintiff does not establish that any recording was made without the consent of the other person [11] in the conversation. The Court finds Plaintiff has not established a claim pursuant to this statute [12] even if one could based upon it—which is unclear. [13] It is also not clear from the Complaint that Plaintiff is alleging a federal ECPA claim. The [14] ECPA protects communications “uttered by a person exhibiting an expectation that such [15] communication is not subject to interception under circumstances justifying such [16] expectation . . . .” 18 U.S.C. § 2510 (2). To the extent that Plaintiff alleges a claim under the ECPA, [17] she has failed to state sufficient facts that would entitle her to relief. In order for the interception [18] of an oral communication to be actionable under the ECPA, a plaintiff must establish three [19] elements: “(1) a willful interception of an oral communication by a device; (2) the communication [20] must have been uttered by a person who exhibited an expectation that it would not be intercepted; [21] and (3) the communication must have been uttered under circumstances that justified the [22] expectation.” Kemp v. Block, 607 F. Supp. 1262, 1264 (D. Nev. 1985) (citing United States v. [23] Carroll, 337 F. Supp. 1260, 1262 (D. D.C. 1971)); see also United States v. Hall, 488 F.2d 193 , [24] 196 (1973). [25] Plaintiff’s complaint does not allege facts from which it can be inferred that she had a [26] reasonable expectation of privacy in the oral communications that Taco Bell allegedly recorded. [27] Plaintiff appears to generally allege that her privacy was violated when her manager at Taco Bell [28] threatened to confront her with video surveillance from the store. This allegation, standing alone, does not establish that Plaintiff made any communications “under the expectation that it would not ° be intercepted” or under “circumstances that justified [that] expectation.” Plaintiff does not even allege that any recording was made without her knowledge. As such, any ECPA claim — to the extent it is pled — must be dismissed as facially deficient. VII. CONCLUSION IT IS ORDERED that Defendant’s Motion for Judgment on the Pleadings (ECF No. 19) ° is GRANTED and this case is DISMISSED. IT IS FURTHER ORDERED that the Clerk of the Court is to close the case and enter judgment accordingly. [13] DATED: February 22, 2022 [14] 16 RICHARD F. BOULWARE, II 7 UNITED STATES DISTRICT JUDGE