Marshall v. City of Las Vegas Municipal Court

Filing 18

ORDER granting Defendant's 4 Motion to Dismiss. Plaintiff's complaint is dismissed without prejudice. Plaintiff is granted leave to file an amended complaint by 3/3/2014. Signed by Chief Judge Gloria M. Navarro. (Copies have been distributed pursuant to the NEF - MJZ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Daphine Marshall,
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Plaintiff,

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vs.
City of Las Vegas Municipal Court,

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Defendant.

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Case No.: 2:13-cv-01414-GMN-PAL
ORDER

Pending before the Court is the Motion to Dismiss, or, In the Alternative, for Summary

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Judgment (ECF No. 4) filed by Defendant City of Las Vegas Municipal Court. Pro se Plaintiff

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Daphine Marshall filed a Response (ECF No. 9) and Defendant filed a Reply (ECF No. 12).

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I.

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BACKGROUND
On June 25, 2013, Plaintiff filed her Complaint in state court, alleging claims for

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wrongful termination, harassment, defamation, and retaliation arising from her former

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employment and subsequent termination by Defendant. (Compl., Ex. A to Notice of Removal,

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ECF No. 1-1.) Plaintiff alleges that she was hired in November 1984, and that in 2008, false

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allegations were made against her “pertaining to alleged Misconduct, Bribery and other

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accusations supposedly occurring in 2008,” of which she was not made aware at that time. (Id.

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at 2:¶¶7-8, 4:¶17.) Plaintiff also alleges that in “the latter part of 2008, [she] became pregnant

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and, during her pregnancy, she had concerns regarding her denial of rights under HIPPA [sic]

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Laws,” for which she “filed various Complaints pertaining to assertions that she was not being

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treated fairly under the HIPPA [sic] Laws.” (Id. at 2:¶10.)

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Plaintiff alleges that she was subsequently “repeatedly harassed and treated differently

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by her superiors and co-workers while at the work place,” including “being ‘written up’ based

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on unsubstantiated allegations, all of which were placed in Plaintiff’s employee file,” and that

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her employee file “contained no negative notations” prior to these events. (Id. at 2:¶11)
Plaintiff alleges that her child was born in August 2009, and that “[f]rom about the

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middle of 2009,” she “was away from the workplace on Maternity Leave and scheduled to

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return to her duties . . . in December 2009.” (Id. at 3:¶12.) During this period, Plaintiff alleges

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that she “was served with a formal letter from her employer by a local Marshall [sic],”

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indicating “that there was a pending investigation pertaining to the allegations made against her

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in 2008.” (Id. at 3:¶13.) Plaintiff alleges that “[t]his was the first time [she] became aware of

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such allegations.” (Id.)

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Plaintiff alleges that “[o]n or about December 29, 2009, [she] was told not to return to

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work as scheduled until the investigation was concluded,” and that she “was informed that her

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reinstatement would take place if the investigation concluded that there was nothing to support

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these allegations made against her in 2008.” (Id.)

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Plaintiff alleges that she “immediately contacted her Employer when she received a

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letter dated February 5, 2010 indicating that she was being terminated as a result of violations

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that somehow occurred while she was on Leave,” and that she “requested reinstatement of her

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duties but was denied this request and was not permitted to return to her duties.” (Id. at 3:¶14.)

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Plaintiff alleges that the denial of her request was “based upon the decision of the Defendant to

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act on the ‘Last Chance Agreement’” and her alleged violations of that agreement. (Id. at

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5:¶¶23-25.)

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Plaintiff alleges that “on or about September 1, 2011, the results of the subject

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Investigation indicated that the allegations made against [her] in 2008 and 2010 could not be

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substantiated and the matter was dismissed.” (Id. at 3:¶15.) Plaintiff alleges that she “was

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considered classified as formally ‘terminated’ retroactively to be effective December 29, 2009.”

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(Id. at 3:¶16.)

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Based on these factual allegations, Plaintiff alleges that Defendant “falsely and

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intentionally led [her] to believe that the termination notice of February 5, 2010 would be

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overturned and that she not [sic] be terminated from her position if the Investigation indicated

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that she had not committed the violations as indicated herein,” but that even after she “was

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exonerated from all such allegations, she was still denied the right to return to work.” (Id.)

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Plaintiff alleges that due to her “reliance on the assertion that she was only being suspended

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due to the Investigation, and due to the allegations contained in her employee file,” she was

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“unable to acquire new employment in her field.” (Id.)

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Plaintiff alleges further that the allegations against her and included in her employee file

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were false, and that Defendant “had no justification to terminate [her] and used the allegations

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as a reason to have Plaintiff leave her position.” (Id. at 4:¶17.) Plaintiff alleges that Defendant

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“did so because of the fact that she became pregnant and filed complaints pertaining to a denial

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of her rights under the HIPPA [sic] Laws.” (Id.)

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Based upon these allegations, Plaintiff claims relief for wrongful termination, and for

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harassment, defamation and retaliation as a result of her complaints regarding violations of her

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rights under HIPAA1.

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II.

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LEGAL STANDARD
Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon

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which relief can be granted. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544,

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555 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on

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which it rests, and although a court must take all factual allegations as true, legal conclusions

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couched as a factual allegation are insufficient. Twombly, 550 U.S. at 555. Accordingly, Rule

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12(b)(6) requires “more than labels and conclusions, and a formulaic recitation of the elements

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of a cause of action will not do.” Id.

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The Court construes Plaintiff’s references to “HIPPA” as referring to the Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”), Pub. L. 104-191, 110 Stat. 1936 (1996).
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“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “A claim has facial plausibility

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when the plaintiff pleads factual content that allows the court to draw the reasonable inference

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that the defendant is liable for the misconduct alleged.” Id. This standard “asks for more than a

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sheer possibility that a defendant has acted unlawfully.” Id.

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“Generally, a district court may not consider any material beyond the pleadings in ruling

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on a Rule 12(b)(6) motion.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542,

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1555 n.19 (9th Cir. 1990). “However, material which is properly submitted as part of the

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complaint may be considered.” Id. Similarly, “documents whose contents are alleged in a

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complaint and whose authenticity no party questions, but which are not physically attached to

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the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss” without

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converting the motion into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449,

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454 (9th Cir. 1994). On a motion to dismiss, a court may also take judicial notice of “matters

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of public record.” Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986).

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Otherwise, if a court considers materials outside of the pleadings, the motion to dismiss is

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converted into a motion for summary judgment. Fed. R. Civ. P. 12(d).

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If the court grants a motion to dismiss for failure to state a claim, leave to amend should

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be granted unless it is clear that the deficiencies of the complaint cannot be cured by

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amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) Pursuant to

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Rule 15(a), the court should “freely” give leave to amend “when justice so requires,” and in the

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absence of a reason such as “undue delay, bad faith or dilatory motive on the part of the

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movant, repeated failure to cure deficiencies by amendments previously allowed, undue

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prejudice to the opposing party by virtue of allowance of the amendment, futility of the

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amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).

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III.

DISCUSSION
In just over one page of argument, Defendant requests dismissal of Plaintiff’s Complaint

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for failure to state a claim upon which relief can be granted under Rule 12(b)(6). (ECF No. 4.)

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In the alternative, and without specific argument or evidence, Defendant requests that summary

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judgment be entered in its favor, apparently under Rule 12(d). (Id.) In its Reply, Defendant

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provides one exhibit dated December 15, 2009, and described as an “Amended Notice of Intent

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to Enforce Last Chance Agreement.” (Ex. 1 to Reply, ECF No. 12-1.)

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The Court finds no support for an order granting summary judgment in Defendant’s
favor. However, as discussed below, the Court finds that dismissal of Plaintiff’s Complaint is

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appropriate, but without prejudice, and that Plaintiff should be given leave to amend her

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pleading.

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The Court finds that Defendant’s arguments as to applicable statutes of limitations are

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well-taken; however at this time the Court possesses insufficient information to determine

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Plaintiff’s intended claims, much less which statutes of limitations apply. Furthermore,

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Plaintiff claims that she was falsely led to believe that her 2009 termination was not final, as

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late as September 1, 2011, which may support tolling of any applicable statute of limitations if

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Plaintiff can present evidence or factual allegations making such a claim plausible.

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As a threshold consideration, however, the Court cannot find that Plaintiff has

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sufficiently stated a legally cognizable claim and the grounds on which it rests, and therefore

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Plaintiff’s claims must be dismissed without prejudice, and leave to amend is granted.

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In her Response, Plaintiff states that “[s]he is not making a claim under HIPAA at this

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time,” and that “[t]here are no allegations contained in her Complaint that would give rise to a

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Title VII Civil Rights action.” (Response, 6:19-20, 6:26–7:1, ECF No. 9.)

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Plaintiff states that her “allegations pertain to acts of Harassment, Defamation and
Retaliation leading to Wrongful Termination,” but does not state the legal basis or applicable

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law under which she brings her claims.
In Nevada, the elements for a cause of action for defamation are taken from the

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Restatement (Second) of Torts, § 558, and include: (1) a false and defamatory statement of fact

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by the defendant concerning the plaintiff; (2) an unprivileged publication to a third party; (3)

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fault, amounting to at least negligence; and (4) actual or presumed damages. Chowdhry v.

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NLVH, Inc., 851 P.2d 459, 483 (Nev. 1993) (per curiam); Pope v. Motel 6, 114 P.3d 277, 315

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(Nev. 2005). Here Plaintiff has failed to provide factual allegations of an unprivileged

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publication to a third party, and has not specifically alleged the substance of any false and

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defamatory statements of fact by Defendant.

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In Nevada, a private right of action for claims of unlawful employment practices such as

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those alleged by Plaintiff are provided by statute, and “[a]ny person injured by an unlawful

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employment practice within the scope of NRS 613.310 to 613.435, inclusive, may file a

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complaint to that effect with the Nevada Equal Rights Commission if the complaint is based on

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discrimination because of race, color, sex, sexual orientation, gender identity or expression,

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age, disability, religion or national origin.” Nev. Rev. Stat. § 613.405. Ordinarily, a

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complainant under this statute must first exhaust administrative remedies before the Nevada

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Equal Rights Commission before filing suit in court. Nev. Rev. Stat. § 613.420; Palmer v. State

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Gaming Control Bd., 787 P.2d 803, 804 (Nev. 1990) (holding that the Nevada Legislature

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intended plaintiffs to administratively exhaust employment discrimination claims “prior to

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seeking redress in the district courts,” and recognizing conditions under which the exhaustion

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requirement may be excused).

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Here, Plaintiff does not state whether her claims arise under Chapter 613 of Nevada

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Revised Statutes. However, if so, Plaintiff has failed to sufficiently allege a cause of action for

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unlawful employment practices because she fails to provide any allegations to support a

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determination that her claims have been exhausted or that exhaustion is not required. Also,

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Plaintiff fails to provide sufficient factual allegations to support a determination that her claims

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are not barred by the limitation on actions under this statute. See Nev. Rev. Stat. § 613.430;

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Copeland v. Desert Inn Hotel, 673 P.2d 490, 492 (Nev. 1983) (recognizing the doctrine of

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equitable tolling under Chapter 613 of Nevada Revised Statutes).
Furthermore, despite her denial, Plaintiff’s remaining allegations could also relate to a

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claim for discriminatory practices prohibited under Title VII of the Civil Rights Act of 1964, 42

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U.S.C. § 2000e-2, as described in 2 U.S.C. § 1311(a)(1). Plaintiff could also have claims as a

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state employee as described in § 2000e-16c, under the Government Employee Rights Act of

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1991, 42 U.S.C. §§ 2000e-16a–2000e-16c, which provides “procedures to protect the rights of

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certain government employees, with respect to their public employment, to be free of

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discrimination on the basis of race, color, religion, sex, national origin, age, or disability,” and

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makes unlawful any practice that violates § 2000e-16b(a). 42 U.S.C. § 2000e-16a.

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For the reasons discussed above, the Court cannot find that Plaintiff has sufficiently

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stated any legally cognizable claim and the grounds upon which it rests. However, recognizing

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the possibility that Plaintiff may be able to cure these deficiencies with amendment, the Court

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will grant leave to amend if she wishes to do so.

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IV.

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CONCLUSION
IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 4) is GRANTED.

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Plaintiff’s Complaint is dismissed without prejudice. Plaintiff is granted leave to file an

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amended complaint, curing the deficiencies described in this Order, by March 3, 2014. Failure

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to do so by this deadline will result in dismissal of the action with prejudice.

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DATED this 7th day of February, 2014.

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___________________________________
Gloria M. Navarro, Chief Judge
United States District Court

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