Myers-Desco v. Lowe's HIW, Inc.

Filing 23

ORDER that Defendants Motion to Dismiss 9 is GRANTED. The Clerk of the Court is directed to close this case. Signed by Chief Judge Roger L. Hunt on 4/12/11. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ELLAMAE MYERS-DESCO,
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Plaintiff,
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vs.
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LOWE’S HIW, INC., a Washington
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corporation, d/b/a LOWE’S,,
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Defendant.
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_______________________________________)

Case No.: 2:10-cv-01746-RLH-PAL
ORDER
(Motion to Dismiss–#9)

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Before the Court is Defendant Lowe’s HIW, Inc.’s Motion to Dismiss (#9, filed

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Nov. 9, 2010) for lack of subject matter jurisdiction and failure to state a claim. The Court has

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also considered Plaintiff Ellamae Myers-Desco’s Opposition (#14, filed Nov. 26, 2010), and

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Defendant’s Reply (#17, filed Dec. 20, 2010).

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BACKGROUND
This dispute arises out of alleged discrimination at Lowe’s against Myers-Desco.

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Myers-Desco alleges various acts of discrimination beginning as early as 2005 and extending

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through May 15, 2010. After she was fired, Myers-Desco filed a complaint with the Nevada Equal

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Rights Commission (“NERC”) on March 29, 2010. (Dkt. 9 Ex. C, NERC Charge.) She then filed

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suit on June 8, 2010, with the Eighth Judicial District Court of the State of Nevada (“State Court”)

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alleging negligent infliction of emotion distress and negligent hiring, training, and supervision.

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(Id. Ex. B, Compl.) Subsequently, and apparently before it had taken any real action, NERC

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closed its case because the allegations in Myers-Desco’s lawsuit were the same as in her

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discrimination charge. (Id. Ex. D, NERC Letter.) Because the Equal Employment Opportunity

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Commission relied on NERC to investigate this charge, it too closed Myers-Desco’s case. (Id. Ex.

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E, EEOC Right-to-Sue Letter.)

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After receiving these letters, Myers-Desco amended her complaint in State Court to

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include her discrimination claims based on the same facts as the original complaint. (Id. Ex. A,

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Am. Compl.) Lowe’s subsequently removed the case to this court and filed the present motion. In

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between filing the motion and issuance of this order, the parties stipulated to dismiss certain of

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Myers-Desco’s claims. (Dkt. #11, Order.) For the reasons discussed below, the Court grants

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Lowe’s motion.

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DISCUSSION
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Failure to State a Claim

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A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which

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relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “a short

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and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

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8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require

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detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic

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recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)

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(citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to rise

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above the speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a

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complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its

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face.” Iqbal, 129 S. Ct. at 1949 (internal citation omitted).

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In Iqbal, the Supreme Court recently clarified the two-step approach district courts

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are to apply when considering motions to dismiss. First, a district court must accept as true all

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well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the

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assumption of truth. Id. at 1950. Mere recitals of the elements of a cause of action, supported only

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by conclusory statements, do not suffice. Id. at 1949. Second, a district court must consider

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whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 1950. A

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claim is facially plausible when the plaintiff’s complaint alleges facts that allows the court to draw

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a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 1949. Where

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the complaint does not permit the court to infer more than the mere possibility of misconduct, the

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complaint has “alleged—but not shown—that the pleader is entitled to relief.” Id. (internal

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quotation marks omitted). When the claims in a complaint have not crossed the line from

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conceivable to plausible, plaintiff’s complaint must be dismissed. Twombly, 550 U.S. at 570.

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A.

Negligent Infliction of Emotional Distress
Both parties fundamentally misunderstand NIED claims. To bring an NIED claim,

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a bystander must have been “located near the scene,” “emotionally injured by the

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contemporaneous sensory observance” of the acts, and “closely related to the victim.” Grotts v.

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Zahner, 989 P.2d 415, 416 (Nev. 1999) (emphasis added). As this Court has repeatedly held,

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direct victims may not bring NIED claims as they are not bystanders. See, e.g., Kennedy v.

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Carriage Cemetery Serv., Inc., 727 F. Supp. 2d 925, 934–35 (D. Nev. 2010). Therefore, the Court

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dismisses Myers-Desco’s NIED claim.

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These parties, as well as many parties that come before the Court, confuse

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negligence claims with parasitic emotional distress damages with claims for NIED. The two

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causes of action, negligence with emotional distress damages and NIED, are simply not the same.

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Many attorney’s have misinterpreted the Nevada Supreme Court’s decision in Shoen v. Amerco,

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Inc., 896 P.2d 469, 477 (Nev. 1995), wherein the court held that direct victims of negligence could

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obtain emotional distress damages. This decision did not do away with the bystander requirement

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for NIED claims, it merely held that plaintiffs pleading negligence may obtain emotional distress

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damages just as NIED claimants may. Id.; see also Carriage Cemetery, 727 F. Supp, 2d at 934–35

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(explaining the Nevada Supreme Court’s holding in Shoen). Confusion such as this demonstrates

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why attorneys should avoid over reliance on Westlaw or Lexis head notes as they may not

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accurately reflect a court’s holding.

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B.

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Negligent Hiring, Training, and Supervision
Lowe’s argues that Nevada law does not support a cause of action by an employee

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(or ex-employee) for negligent hiring, training, and supervision. Myers-Desco failed to contest

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Lowe’s argument for dismissing this claim in her response and therefore consented to the Court

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dismissing the claim. Further, Lowe’s argument is correct. As this Court has held before, such

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claims are reserved to third parties harmed by an employee. See Jespersen v. Harrah’s Operating

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Co., 280 F. Supp. 2d 1189, 1195 (D. Nev. 2002); see also Freeman v. ADT Sec. Services, Inc.,

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2010 WL 3385342, at *2 (D. Nev. Aug. 23, 2010). Therefore, the Court dismisses this claim.

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II.

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Subject Matter Jurisdiction
Under Fed. R. Civ. P. 12(b)(1), a claim may be dismissed for lack of subject matter

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jurisdiction. When reviewing a Rule 12(b)(1) motion, the court views the allegations in the

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plaintiff’s complaint as true. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Thus, the

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plaintiff has the burden of proving jurisdiction to survive the motion. Tosco Corp. v. Cmtys for a

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Better Env’t, 236 F.3d 495, 499 (9th Cir. 2001). However, a district court may consider evidence

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outside the pleadings when ruling on a Rule 12(b)(1) motion, Farr v. United States, 990 F.2d 451

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(9th Cir. 1993), such as EEOC charges.

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To establish federal subject matter jurisdiction over Title VII claims, plaintiffs must

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first exhaust their administrative remedies before seeking federal adjudication of those claims. 42

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U.S.C. § 2000e-5(b) (2006); see also Vasquez v. Cnty of Los Angeles, 349 F.3d 634, 644 (9th Cir.

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1996). “‘[T]he jurisdictional scope of a Title VII claimant’s court action depends upon the scope

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of both the EEOC charge and the EEOC investigation.’” Paige v. State of California, 102 F.3d

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1035, 1041 (9th Cir. 1996) (quoting EEOC v. Farmers Bros. Co., 31 F.3d 891, 899 (9th Cir.

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1994)). Nevada also imposes an exhaustion requirement for analogous state law discrimination

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claims. See Palmer v. State, 787 P.2d 803, 804–05 (Nev. 1990). “[A]bandonment or failure to

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cooperate in the administrative process prevents exhaustion and precludes judicial review.”

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Sommatino v. United States, 255 F.3d 704, 708 (9th Cir. 2001).

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Discrimination Claims
Myers-Desco failed to exhaust her administrative remedies on her discrimination

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claims. Myers-Desco filed suit in State Court alleging the tort claims dismissed above before

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either agency had investigated her claims. This suit was based on the same facts that she alleged

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in her complaint to the NERC and EEOC. Accordingly, both NERC and the EEOC closed their

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cases as neither agency will maintain a case once a plaintiff has filed suit in court. (Dkt. #9 Ex. D,

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NERC Letter; Ex. E, EEOC Right to Sue Letter.) Therefore, the Court dismisses Myers-Desco’s

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discrimination claims because Myers-Desco herself caused NERC and the EEOC to close her

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discrimination case before they conducted an investigation, and therefore Myers-Desco failed to

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exhaust her administrative remedies.

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Myers-Desco contends that she should not be penalized for the EEOC’s or NERC’s

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failure to investigate her charge. The problem with this argument is that it places the blame for the

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EEOC’s and NERC’s failure to proceed with their investigation with those two agencies. Here,

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however, it was Myers-Desco who filed suit before the agencies had the opportunity to conduct

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their investigations and, therefore, she caused the agencies’ failure to investigate. The cases

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Myers-Desco cites are dissimilar in that the plaintiffs in those cases did not cause the EEOC to

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drop the ball on their cases, rather the EEOC itself erred in some way harming those plaintiffs.

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Here, NERC and the EEOC ended their investigations solely because of Myers-Desco’s decision

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to file suit prematurely. Therefore, Myers-Desco did not exhaust her administrative remedies and

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the Court cannot condone such conduct by allowing Myers-Desco to proceed here. If the Court

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were to allow Myers-Desco to proceed any other plaintiff could bypass NERC and the EEOC by

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merely filing suit on the same facts for separate cause of action, forcing the agencies to close their

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cases and issue right-to-sue letters. The Court will not sponsor this end run around the

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administrative process. Accordingly, the Court dismisses Myers-Desco’s discrimination claims as

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she failed to exhaust her administrative remedies.

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CONCLUSION

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Accordingly, and for good cause appearing,

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IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss (#9) is

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GRANTED. The Clerk of the Court is directed to close this case.
Dated: April 12, 2011.

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____________________________________
ROGER L. HUNT
Chief United States District Judge

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