Mayorga v. Diet Center LLC

[3] 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 JOVANNY MAYORGA, Case No. 2:21-CV-2105 JCM (NJK) 8 Plaintiff(s), ORDER 9 v. 10 DIET CENTER LLC, 11 Defendant(s). [12] 13 Presently before the court is defendant Diet Center LLC’s (“Diet Center”) motion to 14 dismiss plaintiff Jovanny Mayorga’s (“Mayorga”) complaint. (ECF No. 10). Mayorga filed a 15 response (ECF No. 14), to which Diet Center replied (ECF No. 16). 16 I. Background 17 This action arises out of an employment discrimination dispute in which Mayorga alleges 18 that Diet Center, via its non-party agent, harassed him, discriminated against him, and caused his 19 constructive discharge because of his sex and sexual orientation. 20 On September 15, 2019, Diet Center hired Mayorga, a homosexual male, to work as a 21 host in its restaurant, the Heart Attack Grill. On October 29, 2019, Mayorga reported to his shift 22 without his hat, a required uniform item. Diet Center’s agent then sent a text message to several 23 employees of Diet Center requesting information as to why Mayorga was out of uniform. 24 According to Mayorga, another employee responded to the text claiming that Mayorga 25 accidentally forgot his hat and that a plan was in place to prevent it from happening again. 26 Mayorga alleges that Diet Center’s agent responded to the employee by saying, “the little faggot 27 doesn’t like to wear the hat” and “no more Giovani [sic].” (ECF No. 6-2 at 21–22). Mayorga 28 further alleges that he was constructively discharged the following day. 1 On January 29, 2020, Mayorga filed an employment discrimination complaint with the 2 Nevada Equal Rights Commission (“NERC”). On August 21, 2021, Mayorga filed a charge of 3 discrimination with the NERC. On September 28, 2021, the NERC issued Mayorga a notice of 4 right to sue under Nevada state law. On September 29, 2021, the Equal Employment 5 Opportunity Commission issued Mayorga a notice of right to sue under federal law. 6 On October 15, 2021, Mayorga filed his complaint in state court alleging two causes of 7 action: (1) sex discrimination/harassment pursuant to Title VII 42 U.S.C § 2000e et seq. and 8 Nevada Revised Statute (“NRS”) § 613.330, and (2) negligent hiring, training, and supervision. 9 Diet Center timely removed to this court on November 25, 2021, and now moves to dismiss 10 Mayorga’s complaint against it. 11 II. Legal Standard 12 A court may dismiss a complaint for “failure to state a claim upon which relief can be 13 granted.” FED. R. CIV. P. 12(b)(6). A properly pled complaint must provide “[a] short and plain 14 statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2); Bell 15 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed 16 factual allegations, it demands “more than labels and conclusions” or a “formulaic recitation of 17 the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation 18 omitted). 19 “Factual allegations must be enough to rise above the speculative level.” Twombly, 550 20 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual 21 matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (citation 22 omitted). 23 In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply 24 when considering motions to dismiss. First, the court must accept as true all well-pled factual 25 allegations in the complaint; however, legal conclusions are not entitled to the assumption of 26 truth. Id. at 678–79. Mere recitals of the elements of a cause of action, supported only by 27 conclusory statements, do not suffice. Id. at 678 . [28] 1 Second, the court must consider whether the factual allegations in the complaint allege a 2 plausible claim for relief. Id. at 679 . A claim is facially plausible when the plaintiff’s complaint 3 alleges facts that allow the court to draw a reasonable inference that the defendant is liable for 4 the alleged misconduct. Id. at 678 . 5 Where the complaint does not permit the court to infer more than the mere possibility of 6 misconduct, the complaint has “alleged—but not shown—that the pleader is entitled to relief.” [7] Id. (internal quotation marks omitted). When the allegations in a complaint have not crossed the 8 line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 9 570. 10 The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 11 1202, 1216 (9th Cir. 2011). The Starr court stated, in relevant part: 12 First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient 13 allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must [14] plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing 15 party to be subjected to the expense of discovery and continued litigation. [16] Id. 17 If the court grants a Rule 12(b)(6) motion to dismiss, it should grant leave to amend 18 unless the deficiencies cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 19 F.2d 655, 658 (9th Cir. 1992). 20 During the motion to dismiss phase of an employment discrimination action, Federal 21 Rule of Civil Procedure 8(a) applies to pleading standards, not the McDonnel Douglas 22 framework. See Austin v. Univ. of Or., 925 F.3d 1133 , 1135–36 (9th Cir. 2019) (“The prima 23 facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading requirement.” 24 (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002))); see also Drevaleva v. Dep’t of 25 Veterans Affairs, 835 F. App’x 221 , 223 (9th Cir. 2020). 26 III. Discussion 27 Under the Twombly/Iqbal standard, a plaintiff must assert a plausible claim for relief. 28 This means that the plaintiff’s complaint must plausibly allege facts which, if uncontroverted, 1 satisfy the necessary elements of the claims upon which he seeks relief. Diet Center argues that 2 Mayorga’s complaint fails under this standard because it does not plausibly allege a cognizable 3 claim under Title VII. The court agrees. 4 Mayorga’s first claim is “sex discrimination/harassment,” but discrimination on the basis 5 of sex can take many forms and has several cognizable legal theories. While sexual harassment 6 falls under the umbrella of discrimination on the basis of sex and is therefore prohibited under 7 Title VII, it has several subcategories which are legally actionable and have unique and 8 distinguishable elements. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986). For 9 example, a claim for sexual harassment could survive on a theory of quid pro quo harassment; 10 harassment amounting to a hostile work environment; retaliatory harassment; and constructive 11 discharge. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); see also 12 Pennsylvania State Police v. Suders, 542 U.S. 129, 134 (2004). 13 Here, Mayorga alleges that he was subjected to severe and pervasive harassment, 14 constructively discharged, and subjected to a sexually hostile work environment where the 15 sexual conduct was sufficiently severe or pervasive that it altered the compensation, terms, 16 conditions, and privileges of his employment. (ECF No. 6-2 at 7–8). 17 This type of birdshot-pleading—listing conclusory allegations regarding elements of 18 various cognizable claims under Title VII’s “on the basis of sex” banner—neither states a 19 specific plausible claim for relief nor gives fair notice to Diet Center as to what it is being sued 20 for. See Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). To the extent that Mayorga does 21 allege specific theories, his allegations—e.g., that Diet Center’s conduct “was so severe and 22 pervasive that it was frequent, humiliating, and interfered with [his] ability to work”—are just 23 conclusory recitations of the elements of those claims. Therefore, Mayorga’s first claim for 24 relief under Title VII is dismissed. 25 Similarly, Mayorga fails to allege non-conclusory facts to sustain his state law claim for 26 negligent hiring, training, and supervision. Therefore, the court dismisses Mayorga’s complaint 27 in its entirety. 28 . . . 1] IV. Conclusion 2 Accordingly, 3 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Diet Center’s motion to 4| dismiss (ECF No. 10) be, and the same hereby is, GRANTED. Mayorga’s complaint is 5 | DISMISSED, without prejudice. The court grants Mayorga leave to amend his complaint within 21 days of the date of this order. If Mayorga does not amend by that time, the clerk is instructed 7 | toclose this case accordingly. 8 DATED June 28, 2022. 9 tis ©. Atala 10 UNITED STATES DISTRICT JUDGE [28] es C. Mahan District Judge _5-