Gross v. Housing Authority of the City of Las Vegas et al
Filing
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ORDER Denying 8 Defendants' Motion to Dismiss. Signed by Judge James C. Mahan on 02/01/2013. (Copies have been distributed pursuant to the NEF - AC)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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IRIS JANE GROSS,
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2:11-CV-1602 JCM (CWH)
Plaintiff(s),
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v.
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HOUSING AUTHORITY OF THE
CITY OF LAS VEGAS, et al.,
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Defendant(s).
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ORDER
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Presently before the court is defendants’ motion1 to dismiss pursuant to Federal Rule of Civil
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Procedure 12(b)(6). (Doc. # 8). Plaintiff, appearing pro se, Iris Jane Gross, filed a response in
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opposition. (Doc. # 20). Defendant filed a reply. (Doc. # 21).
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The parties participated in an early neutral evaluation (ENE) settlement conference, but were
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unable to reach a settlement. The case has returned to the normal litigation track and the instant
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motion is now ripe for this court’s review.
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I.
Background
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Plaintiff is a former employee of the Southern Nevada Regional Housing Authority
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(SNRHA). (Doc. # 7, Compl. at ¶ 3.1). She worked as a public housing family self-sufficiency
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James C. Mahan
U.S. District Judge
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Southern Nevada Regional Housing Authority is erroneously named in the complaint as
Housing Authority of the City of Las Vegas. Additionally, the complaint names the following
individuals as defendants: Father Dave Casaleggio, Carl O. Rowe, Zelda Ellis, Shandra Hudson,
Norma Gray, Al Conklin, Maria Luevanos, Maria Machuca, and Essie Williams.
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coordinator. (Id.). The individual defendants were likewise employed by SNRHA with various
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positions. (See id. at ¶¶ 3.2-3.11).
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SNRHA hired plaintiff, a caucasian woman, on October 21, 2008. (Id. at ¶ 4.2). She was
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hired on a six month probationary term. (Id.). On her second day of work, defendant Conklin, a
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manager and supervisor, issued plaintiff a list of eight major tasks that were to be completed by the
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end of her probationary period. (Id. at ¶ 3.8 & 4.6). Conklin is a caucasian male. (Id. at ¶ 3.8). The
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majority of SNRHA’s staff and employees were members of minority groups. (Id. at ¶ 4.7).
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Plaintiff was fired at the end of her probationary term. (Id. at ¶¶ 4.31-4.37). Plaintiff alleges
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she was fired even though she satisfactorily completed her eight major tasks. (See id.). Plaintiff then
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filed this lawsuit alleging racial discrimination and religious discrimination under Title VII, and
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disability discrimination under the American with Disabilities Act. (Id. at ¶¶ 5.1-5.3).
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II.
Legal Standard
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A court may dismiss a plaintiff's complaint for “failure to state a claim upon which relief can
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be granted.” Fed.R.Civ.P. 12(b)(6). A properly pled complaint must provide “[a] short and plain
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statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell
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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual
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allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the elements
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of a cause of action.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citation omitted). “Factual
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allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Thus,
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to survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a claim
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to relief that is plausible on its face.” Iqbal, 129 S.Ct. at 1949 (citation omitted).
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In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when
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considering motions to dismiss. First, the court must accept as true all well-pled factual allegations
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in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 1950.
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Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not
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suffice. Id. at 1949. Second, the court must consider whether the factual allegations in the complaint
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allege a plausible claim for relief. Id. at 1950. A claim is facially plausible when the plaintiff's
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James C. Mahan
U.S. District Judge
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complaint alleges facts that allows the court to draw a reasonable inference that the defendant is
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liable for the alleged misconduct. Id. at 1949.
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Where the complaint does not permit the court to infer more than the mere possibility of
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misconduct, the complaint has “alleged, but not shown, that the pleader is entitled to relief.” Id.
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(internal quotations omitted). When the allegations in a complaint have not crossed the line from
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conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570.
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III.
Discussion
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The court will address each of plaintiff’s three causes of action in turn.
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A.
Discrimination Based on Race
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Title VII makes it unlawful for an employer to “discharge any individual, or otherwise to
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discriminate against any individual with respect to [her] compensation, terms, conditions, or
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privileges of employment, because of such individual’s race. . . .” 42 U.S.C. § 2000e-2(a)(2).
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To state a claim for race discrimination under Title VII, a plaintiff must plead facts
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demonstrating the occurrence of four elements: (1) that plaintiff was a member of a protected class;
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(2) that plaintiff applied for, was qualified for, and performed the job satisfactorily; (3) that plaintiff
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suffered an adverse employment action because of her race; and (4) that the employer treated
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similarly situated employees outside of plaintiff’s protected class more favorably. See Washington
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v. Graves, 10 F.3d 1421, 1433 (9th Cir. 1994); Brown v. FPI Mgmt., Inc., no. c-11-05414, 2012 WL
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629182, at *4 (N.D. Cal. Feb. 27, 2012).
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Plaintiff states she is a caucasian, while 80% of her coworkers at SNRHA were from a racial
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minority group. (Doc. # 7, Compl. ¶¶ 4.2 & 4.7). At this early stage, these assertions establish
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element one.
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For element two, plaintiff alleges that she completed each task on her assignment list within
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the prescribed time limits and submitted the appropriate report to supervisor Conklin. (Id. at ¶ 4.12).
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Plaintiff also alleges that she submitted an application to transfer to a similar position at SNRHA on
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March 12, 2009. (Id. at ¶ 4.26). Plaintiff alleges she was qualified for the position but did not
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receive it. (See id.). These assertions establish the second element.
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U.S. District Judge
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For element three, plaintiff asserts that she received a negative and unsatisfactory job
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performance rating. (Id. at ¶ 4.28). Plaintiff alleges she submitted formal objections to the review.
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(Id. at ¶ 4.29). Plaintiff was terminated from her probationary term, and she alleges it was based on
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discrimination. (Id. at ¶¶ 4.31 & 4.35). She has satisfied the third element.
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Finally, plaintiff asserts that employees outside of her protected class were not terminated.
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Plaintiff’s allegations for racial discrimination are not a model of clarity, but, at this early stage, her
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factual assertions remove the allegations from the realm of the “conclusory” to the realm of
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“plausible.”
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B.
Discrimination Based on Religion
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Title VII makes it unlawful for an employer to discriminate against an employee on the basis
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of the employee’s religion. 42 U.S.C. § 2000e-2(a)(1). Religion includes “all aspects of religious
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observance and practice, as well as belief, unless an employer demonstrates that he is unable to
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reasonably accommodate to an employee’s or prospective employee’s religious observance or
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practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j).
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To establish a prima facie case for religious discrimination under Title VII, a plaintiff must
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plead facts sufficient to show: (1) “she had a bona fide religious belief, the practice of which
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conflicted with an employment duty; (2) she informed her employer of the belief and conflict; and
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(3) the employer threatened her or subjected her to discriminatory treatment, including discharge,
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because of her inability to fulfill the job requirements.” Tiano v. Dilliard Dep’t. Stores, Inc., 139
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F.3d 679, 681 (9th Cir. 1998) (citing Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993).
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For element one, plaintiff alleges she that she is Jewish. (Compl. at ¶ 4.8). She further
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alleges that because of her religion she could not participate in activities centered around Christmas
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or celebrate Christmas. (Id.). At this early stage these allegations establish element one.
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For element two, plaintiff alleges she told some coworkers and supervisor Conklin at a staff
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meeting that she was Jewish. (Id.). She further alleges she informed her coworkers and supervisor
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that she could not celebrate Christmas or participate in activities centered around Christmas. (Id.).
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At this early stage, plaintiff has established element two.
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U.S. District Judge
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For element three, plaintiff alleges that she was terminated on the basis of religious
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discrimination. (See id. at ¶¶ 4.32-4.40). She asserts that she did not participate in Christmas
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activities or celebrations because she is Jewish, and that defendants schemed to fire her. Plaintiff’s
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factual assertions are sparse and not very well connected. Nonetheless she has sufficiently pled a
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cause of action for religious discrimination at this early stage.
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C.
Discrimination Based on Disability
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The Americans with Disabilities Act (ADA) makes it unlawful for a qualified employer to
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“discriminate against a qualified individual on the basis of disability in regard to job application
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procedures, the hiring, advancement, or discharge of employees, employee compensation, job
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training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).
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Discrimination includes “not making reasonable accommodations to the known physical or mental
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limitations of an otherwise qualified individual with a disability who is an applicant or employee,
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unless such covered entity can demonstrate that the accommodation would impose an undue
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hardship on the operation of the business of such covered entity.” 42 U.S.C. § 12112(b)(5)(A).
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“[T]o state a prima facie case under the ADA, [the plaintiff] must show that (1) she is a
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disabled person within the meaning of the ADA; (2) she is a qualified individual, meaning she can
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perform the essential functions of her job; and (3) [the defendant] terminated her because of her
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disability.” Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999).
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To satisfy the first showing, “an individual is disabled [under the ADA] if that individual (1)
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has a physical or mental impairment that substantially limits one or more of the individual’s major
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life activities; (2) has a record of such an impairment; or (3) is regarded as having such an
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impairment.” Coons v. Secretary of U.S. Dep’t. of Treasury, 383 F.3d 879, 884 (9th Cir. 2004)
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(citing 42 U.S.C. § 12102(2). Plaintiff’s complaint alleges that she “was an individual with
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disabilities [because] she was restricted in lifting, carrying and walking distances.” (Compl. at ¶
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4.5). She further alleges that she “submitted a doctor’s certification to Defendant Gray in the Human
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Resources office stating that she had physical limitations.” (Id. at ¶ 4.9; see also ¶¶ 4.22-4.24). She
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has satisfied the first showing at this stage in the proceeding.
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U.S. District Judge
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For step two, plaintiff asserts she was qualified for her own position as well as the other open
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positions and performed them satisfactorily. (Id. at ¶¶ 3.1, 4.26, & 4.29). Finally, for the third
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showing, plaintiff alleges she was terminated on the basis of her employer discriminating against her
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because of her disabilities. (Id. at 4.31). Like her two previous claims, plaintiff has satisfied the
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requirements at this early stage in the action.
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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants’ motion to
dismiss (doc. # 8) be, and the same hereby, is DENIED.
DATED February 1, 2013.
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UNITED STATES DISTRICT JUDGE
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James C. Mahan
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