Coltrain v. Bonanza Gift Shops and General Store

Filing 21

ORDER Granting in part and Denying in part 18 Motion to Dismiss as follows: Coltrain's discrimination, negligent infliction of emotional distress, and negligent hiring, retention, and supervision claims are dismissed; Coltrain's retaliation claims remain against both Defendants. Signed by Judge Roger L. Hunt on 4/10/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JAMES COLTRAIN,

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Plaintiff,
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vs.
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G4S SECURE SOLUTIONS (USA), INC., a
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Texas Corporation, BONANZA GIFT SHOPS )
AND GENERAL STORE, a Nevada
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Corporation, and DOES I through X, inclusive, )
and ROE CORPORATIONS I-X, inclusive,
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Defendants.
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_______________________________________)

Case No.: 2:11-cv-00763-RLH-PAL
ORDER
(Motion to Dismiss–#18)

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Before the Court is Defendants G4S Secure Solutions (USA), Inc. (“G4S”) and

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BMorris, Inc.’s (improperly named as Bonanza Gift Shops and General Store) (“Bonanza”)

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Motion to Dismiss (#18, filed Jan. 26, 2012) based on a failure to state a claim. The Court has

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also considered Plaintiff James Coltrain’s Opposition (#19, filed Feb. 20), and Defendants’ Reply

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(#20, filed Mar. 2).

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AO 72
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BACKGROUND
This is a employment discrimination case. Coltrain alleges the following facts.
Coltrain was a security guard who worked for G4S, which does business in Nevada as Wackenhut
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Nevada G4S. Coltrain was assigned as a guard at Bonanza’s store. On February 17, 2009,

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Coltrain wrote a complaint to G4S that a Bonanza employee sexually harassed him at Bonanza.

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That same day, a G4S manager came to Bonanza, suspended Coltrain, and verbally and physically

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threatened him. G4S fired Coltrain on February 23.

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Coltrain received right to sue letters from the Equal Employment Opportunity

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Commission and filed suit against G4S and Bonanza on May 12, 2011. In his first amended

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complaint, Coltrain alleges: (1) discrimination and retaliation under 42 U.S.C. § 2000e (Title VII);

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(2) discrimination and retaliation under NRS 613.330; (3) negligent infliction of emotional

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distress; and (4) negligent hiring, retention, or supervision. Defendants now move to dismiss all

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claims. For the reasons discussed below, the Court grants the motion in part and denies the motion

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in part.

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DISCUSSION
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Standard

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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, the complaint must be dismissed. Twombly, 550 U.S. at 570.

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II.

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Analysis
A.

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NIED and Negligent Hiring Claims
Coltrain conceded the dismissal of his NIED and negligent hiring, retention, and

supervision claims. Thus, the Court dismisses these claims without further discussion.
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Employment Status
Bonanza argues that Coltrain’s complaint should be dismissed against it as he has

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failed to allege that Boanza is his employer or joint employer under Title VII or Nevada’s

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analogous state statutes. Courts in the Ninth Circuit apply an economic reality test in determining

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whether a defendant is a joint employer and look to various, non-exclusive factors in making this

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determination. See, e.g., Bonnette v. Cal. Health and Welfare Agency, 704 F.2d 1465, 1470 (9th

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Cir. 1983), abrogated on other grounds by Garcia v. San Antonio Metro. Transit Auth., 469 U.S.

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528 (1985); EEOC v. Pac. Mar. Ass’n, 351 F.3d 1270, 1275-76 (9th Cir. 2003). Considering the

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economic reality of a security guard stationed at a particular location/business, the Court concludes

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that Coltrain has provided sufficient allegations that Bonanza was his joint employer. It is

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plausible from his complaint that Bonanza supervised Coltrain, could discipline him (by

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requesting that he be transferred), controlled the manner of his work, and fully supervised,

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monitored, and controlled his work site. See Bonnette, 704 F.2d at 1470. The Court, therefore,

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will not dismiss Bonanza at this stage, though it may be appropriate to do so after further factual

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development at the summary judgment stage.

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B.

Discrimination

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Coltrain alleges sex discrimination, or more accurately a hostile work environment,

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based on an isolated incident. To establish a prima facie hostile work environment claim based on

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sex discrimination, a plaintiff must show: (1) physical or verbal conduct of a sexual nature; (2) that

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the conduct was unwelcome; and (3) the conduct was “so severe or pervasive as to alter the

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conditions of the victim’s employment and create an abusive working environment.” Clark Cnty.

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Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001) (internal quotations and alterations omitted);

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Manatt v. Bank of Am., 339 F.3d 792, 798 (9th Cir. 2003).

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Coltrain alleges that on February 17, 2009, a female Bonanza employee subjected

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him to “uninvited and offensive gestures.” (Dkt. #17, Compl. 3:12-13.) This is the extent of

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Coltrain’s allegations in his complaint. Coltrain attempts to bolster these allegations in his

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opposition by attaching his incident report. This exhibit states that the employee stared at

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Coltrain, looked him up and down repeatedly, and applied lipstick in a suggestive manner. (Dkt.

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#19, Opp. Ex. 2.). Even if the Court were to grant Coltrain leave to amend and add these

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additional allegations (as an opposition cannot add allegations to a complaint), they would be

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insufficient to state a discrimination claim. This event was simply not sufficiently severe or

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pervasive to alter Coltrain’s terms of employment or create an abusive work environment. Thus,

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the Court dismisses Coltrain’s state and federal discrimination claims.

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C.

Retaliation
To properly state a retaliation claim, a plaintiff must allege: (1) that plaintiff had

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engaged in a protected activity, (2) that plaintiff suffered an adverse employment decision, and (3)

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that there was a causal link between the activity and the employment decision. See Trent v. Valley

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Elec. Ass’n, 41 F.3d 524, 526 (9th Cir. 1994). Defendants do not specifically address Coltrain’s

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retaliation claim, but rather seem to hope that it would fall along with the discrimination claim.

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This is not necessarily the case. While a retaliation claim may fail along with a discrimination

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claim, that happens where the plaintiff did not have a reasonable belief that the complained of

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activity was unlawful. See id., at 526-27; see also Breeden, at 270-71. As long as a plaintiff

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reasonable believed that the complained of activity was unlawful, reporting it is a protected

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activity. Id. Here, Coltrain reported activity he believed to be unlawful and was suspended within

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hours. He was then fired less than a week later. Thus, Coltrain has adequately plead a retaliation

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claim.

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CONCLUSION

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Accordingly, and for good cause appearing,

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IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (#18) is

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GRANTED in part and DENIED in part as follows:
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Coltrain’s discrimination, negligent infliction of emotional distress, and
negligent hiring, retention, and supervision claims are dismissed;

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Coltrain’s retaliation claims remain against both Defendants.

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Dated: April 10, 2012.
6, 2012.

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____________________________________
ROGER L. HUNT
United States District Judge

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AO 72
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