Kirkland v. Rio Hotel and Casino

Filing 5

ORDER that Plaintiff's breach of contract, common law wrongful termination, retaliation, and section 1983 claims are DISMISSED without prejudice. IT IS FURTHER ORDERED that Plaintiff may file a motion to amend complaint within 30 days of this order. Signed by Magistrate Judge George Foley, Jr on 1/8/14. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DANIEL KIRKLAND,

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Plaintiff,
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vs.
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RIO HOTEL & CASINO,
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Defendant.
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__________________________________________)

Case No. 2:13-cv-00500-GMN-GWF
ORDER

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This matter comes before the Court on Plaintiff Daniel Kirkland’s (“Plaintiff”) Amended

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Complaint (#4), filed on June 17, 2013. The Court permitted Plaintiff to pursue this matter in

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forma pauperis, but dismissed Plaintiff’s original Complaint, with leave to amend, for failure to

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exhaust administrative remedies. See May 16, 2013 Order, Doc. #2.

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DISCUSSION

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I.

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Upon granting a request to proceed in forma pauperis, a court must additionally screen a

Screening the Complaint

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complaint under section 1915(a). Federal courts are given the authority to dismiss a case if the

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action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or

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seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

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When a court dismisses a complaint under section 1915(a), the plaintiff should be given leave to

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amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of

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the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70

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F.3d 1103, 1106 (9th Cir. 1995).

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...

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Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint

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for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is

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essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d

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719, 723 (9th Cir. 2000). A properly pled complaint must provide a “short and plain statement of

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the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v.

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Twombley, 550 U.S. 544, 555 (2007). Although 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

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

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Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled factual allegations

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contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal,

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129 S.Ct. at 1950. Mere recitals of the elements of a cause of action, supported only by conclusory

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allegations, do not suffice. Id. at 1949. Secondly, where the claims in the complaint have not

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crossed the line from plausible to conceivable, the complaint should be dismissed. Twombly, 550

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U.S. at 570.

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The Amended Complaint asserts claims of race and age discrimination under Title VII of

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the Civil Rights Act, 42 U.S.C. § 2000e et seq., retaliation, wrongful termination, and breach of

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contract. The Complaint’s caption also indicates Plaintiff seeks relief for the alleged discrimination

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under 42 U.S.C. § 1983. Plaintiff, an African-American male aged 62, claims he was employed by

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the Rio Casino and Hotel as a poker dealer at the time of the occurrences alleged to have given rise

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to Plaintiff’s Complaint. He has been so employed since 1975 with various Caesars Entertainment

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Corporation properties. Sometime prior to November 15, 2011, Plaintiff alleges a manager

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promised Plaintiff that he was “next in line” for a full-time poker dealer position. On November

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15, 2011, Plaintiff claims a young, white male was offered a full-time poker dealer position.

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Shortly thereafter, Plaintiff alleges two more young, white males were hired in the same capacity.

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On May 14, 2012, Plaintiff was terminated from employment after a complaint was made regarding

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Plaintiff handing out his business card at Bally’s, another Caesars property. Plaintiff avers he

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received his right-to-sue letter from the Equal Employment Opportunity Commission on November

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6, 2012.
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To state a discrimination claim under Title VII, Plaintiff must allege that: (1) he belonged to

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a protected class; (b) he was qualified for the job; (3) he was subjected to an adverse employment

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action; and (4) similarly situated employees not in his protected class received more favorable

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treatment. Moran v. Selig, 447 F.3d 748, 753 (9th Cir. 2006); see also 42 U.S.C. § 2000e-3(e).

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Here, Plaintiff’s allegations, taken as true, establish that he was a member of a protected class both

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as regards to his race and his age, that he was qualified for the position of full-time poker dealer,

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that he did not receive the position as promised, and that individuals who were not a member of

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either of Plaintiff’s protected classes were hired for the same position. Therefore, the Court finds

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that Plaintiff has stated a claim for discrimination under Title VII both as regards his race and his

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age.

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To state a retaliation claim under Title VII, Plaintiff must allege that: (1) he engaged in a

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protected activity, such as complaining about discriminatory practices; (2) he suffered an adverse

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employment action; and (3) there is a causal connection between his protected activity and the

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adverse act. Davis v. Team Elec. Co., 520 F.3d 1080, 1093-94 (9th Cir. 2008). Here, Plaintiff has

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pled no facts that establish he engaged in any protected activity. Accordingly, the Court finds that

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Plaintiff has not stated a claim for retaliation under Title VII.

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To state a claim for breach of contract, Plaintiff must allege that: (1) there was a valid

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contract; (2) Defendant breached the contract; and (3) damages exist as a result of the breach.

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Brown v. Kinross Gold USA, Inc., 531 F.Supp.2d 1234, 1240 (D. Nev. 2008). For a valid contract,

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there must be “an offer and acceptance, meeting of the minds, and consideration.” In re

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Zappos.com, 893 F.Supp.2d 1058, 1062-63 (D. Nev. 2012). An enforceable contract “requires a

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manifestation of mutual assent in the form of an offer by one party and acceptance thereof by the

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other ... [and] agreement or meeting of the minds of the parties as to all essential elements.” Id. at

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1063 (internal citations omitted). Plaintiff has not pled sufficient facts to establish there was a

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valid contract in this case. There may be sufficient allegations to support an offer and acceptance

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occurred, but there are none to support the existence of any meeting of the minds or consideration.

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Therefore, the Court finds that Plaintiff has not stated a claim for breach of contract.

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The Nevada Supreme Court considers the remedies provided by federal and state statutes to

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be sufficiently comprehensive to bar a common law wrongful termination claim based on unlawful

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discrimination. De Los Reyes v. Southwest Gas Corp., 2007 WL 2254717, at *Sands Regent v.

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Valgardson, 777 P.2d 898, 200 (Nev.1989) (refusing to recognize a wrongful termination cause of

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action based on age discrimination where the employee could recover under federal and state

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discrimination statutes). Accordingly, the Court is unable to recognize Plaintiff's cause of action

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for wrongful termination based on race and age discrimination as a cognizable claim under Nevada

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law.

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Nevada also has an anti-discrimination statute, however. Under Nevada Revised Statute

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(“NRS”) § 613.330(1), it is an unlawful employment practice to discharge any individual because

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of his race, color, sex, religion, sexual orientation, age, disability or national origin. Nevada courts

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have looked to the federal courts for guidance on discrimination claims because of the similarities

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between Title VII and Nevada’s anti-discrimination statute. Pope v. Motel 6, 114 P.3d 277,

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280 (Nev. 2005). In light of this, because Plaintiff meets the pleading requirements to proceed with

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his Title VII claim, the Court will permit Plaintiff to proceed with his state discrimination claim as

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regards his age and race under NRS § 613.330(1).

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To state a claim under section 1983, a Plaintiff must allege that an individual acting under

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color of state law deprived him of a right secured by the Constitution. West v. Atkins, 487 U.S. 42,

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48 (1988). Plaintiff has not pled any facts that suggest the discrimination he allegedly suffered was

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committed by a state actor. Therefore, the Court finds Plaintiff has not stated a claim under section

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1983.

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In the event Plaintiff elects to proceed in this matter by filing an amended complaint, he is

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informed that the Court cannot refer to a prior pleading to make his amended complaint complete.

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Local Rule 15-1 requires that an amended complaint be complete in itself without reference to any

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prior pleading. This is because, as a general rule, an amended complaint supersedes the original

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complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once Plaintiff files an amended

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complaint, the original pleading no longer serves any function in the case. Therefore, in an

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amended complaint, as in an original complaint, each claim and the involvement of each defendant
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must be sufficiently alleged.

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CONCLUSION

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The Court finds Plaintiff has pled sufficient facts to proceed on his Title VII and Nevada

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anti-discrimination claims as regards his age and race. The Court finds that Plaintiff has not pled

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sufficient facts to proceed on his breach of contract, wrongful termination, retaliation, or section

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1983 claims. Accordingly,

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IT IS HEREBY ORDERED that Plaintiff’s breach of contract, common law wrongful

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termination, retaliation, and section 1983 claims are dismissed without prejudice for failure to state

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a claim upon which relief can be granted.

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IT IS FURTHER ORDERED that in the event Plaintiff wishes to file an amended

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complaint in this case, he shall file a motion for leave to do so within 30 days of the date of this

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Order.

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DATED this 8th day of January, 2014.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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