Bunar v. Aliante Gaming LLC

Filing 23

ORDER. IT IS ORDERED that 8 Aliante's motion to dismiss is GRANTED. See Order for details/deadlines. Signed by Judge Andrew P. Gordon on 8/10/17. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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LAURA BUNAR,

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Plaintiff

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Case No. 2:16-cv-02865-APG-CWH

v.
ALIANTE GAMING, LLC,

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ORDER GRANTING ALIANTE
GAMING’S MOTION TO PARTIALLY
DISMISS PLAINTIFF’S COMPLAINT
(ECF No. 8)

Defendant.

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Plaintiff Laura Bunar sues her former employer, Aliante Gaming, LLC, alleging age

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discrimination, retaliation, hostile work environment, and intentional infliction of emotional

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distress. Aliante moves to dismiss Bunar’s state law claims of discrimination and retaliation

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because Bunar did not timely exhaust her administrative remedies when she filed her charge with

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the Nevada Equal Rights Commission (NERC) after the 180-day deadline imposed by Nevada

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law. Aliante also argues the hostile work environment claim should be dismissed because Bunar

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failed to assert it in her charge with the NERC and because she has not alleged sufficient facts to

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support it.
I grant Aliante’s motion to dismiss these claims. Bunar failed to file a charge with the

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NERC within 180 days of her termination, so her discrimination and retaliation claims were not

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timely exhausted. Bunar’s hostile work environment claim fails because she did not list it as an

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allegation in her charge to the NERC, and therefore she failed to exhaust her administrative

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remedies.

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I.

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BACKGROUND
Bunar was a table games dealer at Aliante Casino for approximately five years. ECF No. 1

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at 3. She claims she suffered discrimination when Aliante treated younger employees more

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favorably (such as promoting younger, less experienced employees to the “Party Pit”) and

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discharged her for no valid reason. Id. at 8-9, 15. Additionally, Aliante allegedly retaliated

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against Bunar after she complained about being treated unfairly. Id. at 16. These retaliatory acts

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included refusing to provide her with pertinent employment information, excluding her from

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consideration for advancement opportunities, passing her up for promotions, writing her up for

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activities that did not violate rules, and improperly terminating her. Id. at 13, 16.
Bunar’s termination allegedly stemmed from an event on October 26, 2015, while she was

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working at a craps table. Id. at 4. A patron threw the dice and nearly hit Bunar in the face. Id.

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After Bunar asked the patron to adjust his behavior multiple times, the patron yelled obscenities

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and eventually left the table. Id. Bunar’s supervisor, Joyce Orlando, then accused Bunar of losing

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the casino money. Id. The next day, Joyce suspended Bunar, and on November 3, 2015 Bunar

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was terminated based on the incident. Id. at 3, 5. After her termination, Aliante opposed Bunar’s

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unemployment benefits on three separate occasions. Id. at 6. Bunar filed a charge with the NERC

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on August 12, 2016, alleging age and national origin discrimination and retaliation. Id. at 2, 22.

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II.

ANALYSIS

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I may dismiss a plaintiff’s complaint for “failure to state a claim upon which relief can be

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granted.” Fed. R. Civ. P. 12(b)(6). A properly pleaded 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

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

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the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation

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omitted). “Factual allegations must be enough to raise a right to relief above the speculative

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level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain

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sufficient factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at

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678 (quotation omitted).

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A. State law claims for discrimination and retaliation

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Counts four and five of the complaint allege employment discrimination and retaliation

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under Nevada law. ECF No. 1 at 15-17. Aliante argues that Bunar did not timely exhaust these

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claims because the last retaliatory and discriminatory act Bunar allegedly suffered was her

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Page 2 of 7

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termination on November 3, 2015, but she did not file her charge with the NERC until August 12,

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2016, which was 103 days too late. Bunar responds that the last act of discrimination and

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retaliation was not her termination, but rather Aliante’s opposition to her unemployment benefits,

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the last of which occurred in March 2016. Bunar contends the three oppositions to her

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unemployment benefits were continuing violations that extend the time to file her charge. Bunar

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also argues that her charge was filed within the 180-day deadline because on May 13, 2016, she

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wrote a letter to the NERC complaining of the discriminatory and retaliatory acts.

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An employee alleging employment discrimination must exhaust her administrative
remedies by filing a charge with the NERC within 180 days “of the act complained of” before

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suing in court. Nev. Rev. Stat. § 613.430. The complaint alleges Bunar was terminated on

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November 3, 2015 and filed her charge with the NERC on August 12, 2016. Taking these

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allegations as true, Bunar’s state law claims were not timely exhausted because she filed her

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charge more than 180 days after her termination.

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Bunar asserts that her claims are nevertheless timely for two reasons: (1) she filed her

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charge on May 13, 2016 when she sent a letter to NERC, and (2) the continuing violation doctrine

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makes her charge timely because Aliante last opposed her unemployment benefits in March 2016.

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Neither of these theories nor the facts supporting them are alleged in the complaint. I therefore

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consider these arguments only for purposes of whether dismissal should be with or without

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prejudice.

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I will dismiss Bunar’s termination and pre-termination claims with prejudice because

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amendment would be futile. See Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004) (“Futility

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alone can justify the denial of a motion for leave to amend.”). As Bunar concedes, even if her

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May 13, 2016 letter counted as her charge with NERC, her charge was still untimely. ECF No. 16

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at 3. Moreover, I predict the Supreme Court of Nevada would not apply the continuing violation

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doctrine to discrimination or retaliation claims that are based on discrete acts. See Hemmings v.

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Tidyman’s Inc., 285 F.3d 1174, 1203 (9th Cir. 2002) (stating that if an issue has not been

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addressed, a federal court must predict what the state’s highest court would do). In interpreting a

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statute, the Supreme Court of Nevada looks first to the statute’s plain language. Allstate Ins. Co.

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v. Fackett, 206 P.3d 572, 576 (Nev. 2009) (en banc). Section 613.430 requires a charge be filed

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with the NERC within 180 days “of the act complained of.” Thus, by the statute’s plain

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language, the time limit in which to file a charge runs from each discrete act of discrimination or

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retaliation. Additionally, “[i]n light of the similarity between Title VII of the 1964 Civil Rights

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Act and Nevada’s anti-discrimination statutes,” the Supreme Court of Nevada “look[s] to the

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federal courts for guidance in discrimination cases.” Pope v. Motel 6, 114 P.3d 277, 280 (Nev.

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2005) (footnote omitted). Under federal law, “[e]ach discrete discriminatory act starts a new

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clock for filing charges alleging that act,” and the plaintiff therefore must file the charge “within

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the 180- or 300-day time period after the discrete discriminatory act occurred.” Nat’l R.R.

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Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). Consequently, the contention that Aliante

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allegedly engaged in post-termination retaliatory acts does not extend the time limit for filing

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charges related to Bunar’s termination and pre-termination acts of discrimination or retaliation.

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Thus, amendment to allege that the May 2016 letter is the timely charge would be futile as to

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Bunar’s termination and pre-termination retaliation and discrimination claims. I therefore dismiss

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with prejudice Bunar’s state law discrimination and retaliation claim for all acts up to and

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including her termination.

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The situation is less clear with respect to whether Bunar can state a claim based on

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Aliante’s alleged post-termination opposition to her unemployment benefits. Aliante contends

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there is no such claim, relying on Dannenbring v. Wynn Las Vegas, LLC, No. 2:12-cv-00007-

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JCM-VCF, 2014 WL 518759 (D. Nev. Feb. 7, 2014). That case rejected the proposition that an

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employer could be deemed to have retaliated against an employee by opposing a request for

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unemployment benefits following termination. Id. at *5. “Employers have a lawful right to

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challenge unemployment insurance claims by former employees in administrative and judicial

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proceedings. A ruling that defendant’s conduct constituted retaliation would place employers into

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an unwinnable paradox in which they would violate Title VII merely by arguing that their prior

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actions did not violate Title VII.” Id.

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I disagree with this analysis. An employer has a right to take many lawful acts, including

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terminating its employees and engaging in other disciplinary action, but it does not have the right

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to take those actions in retaliation for Title VII protected activity. Additionally, the employer

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does not violate anti-retaliation laws merely by arguing its prior acts did not violate those same

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laws. Instead, the plaintiff must plead facts making it plausible that the employer opposed the

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unemployment benefits in retaliation for the plaintiff’s protected activity. I therefore reject

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Aliante’s argument that Dannenbring forecloses a retaliation claim based on Aliante’s opposition

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to Bunar’s unemployment benefits.

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That leaves the question of whether the claim is nevertheless futile because Bunar did not

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exhaust her administrative remedies. Under Nevada law, “if the employee alleging

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discrimination later files a district court action, she may only expand her discrimination action to

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include allegations of other discrimination if the new claims are reasonably related to the

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allegations of the [administrative] charge.” Pope, 114 P.3d at 280 (quotation omitted). “Claims in

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a complaint are not like or reasonably related to allegations in an administrative charge unless a

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factual relationship exists between them.” Id. “Consequently, an employee who brings unrelated

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claims in the district court without first presenting them to NERC has failed to exhaust her

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administrative remedies.” Id.

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Claims are reasonably related “if [those claims] fell within the scope of the EEOC’s actual

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investigation or an EEOC investigation which can reasonably be expected to grow out of the

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charge of discrimination.” B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002)

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(quotation and emphasis omitted). To determine whether the plaintiff has exhausted allegations

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not specifically in her administrative charge, I may consider factors such as “the alleged basis of

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the discrimination, dates of discriminatory acts specified within the charge, perpetrators of

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discrimination named in the charge, and any locations at which discrimination is alleged to have

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occurred.” Id. Additionally, I may consider whether the allegedly unexhausted claims are

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“consistent with the plaintiff’s original theory of the case.” Id.

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Because the facts supporting such a claim were not alleged in the complaint, the parties’

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briefing does not fully address the issue of exhaustion. The dismissal therefore is without

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prejudice to Bunar alleging a retaliation claim based on Aliante’s alleged retaliatory opposition to

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Bunar’s request for unemployment benefits. If Bunar seeks to assert such a claim, she must file

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an amended complaint containing adequate factual allegations, if such facts exist.

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B. Hostile work environment

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Federal law also requires a party to exhaust administrative remedies by timely filing a

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charge with the Equal Employment Opportunity Commission (EEOC) or the appropriate state

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agency before bringing suit in federal court. B.K.B., 276 F.3d at 1099. Allegations not included

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in the administrative charge “may not be considered by a federal court unless the new claims are

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like or reasonably related to the allegations contained in the EEOC charge.” Id. (quotation

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omitted). Claims are reasonably related “if [those claims] fell within the scope of the EEOC’s

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actual investigation or an EEOC investigation which can reasonably be expected to grow out of

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the charge of discrimination.” Id. (quotation and emphasis omitted).

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In Bunar’s charge to the NERC, she failed to include an allegation of hostile work

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environment. ECF No. 1 at 22. Bunar checked boxes for discrimination and retaliation and

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included factual allegations to support only those particular claims. Id. To the extent she seeks

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leave to amend her complaint to include allegations about the May 2016 letter, she did not list

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hostile work environment as a basis for a claim there either, nor do the sporadic incidents listed in

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the letter suggest Bunar was claiming a hostile work environment. ECF No. 16-1; see Manatt v.

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Bank of Am., 339 F.3d 792, 798 (9th Cir. 2003) (stating that a hostile work environment claim

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must show “the conduct was sufficiently severe or pervasive to alter the conditions of [the

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plaintiff’s] employment and create an abusive work environment” (quotation omitted)). Neither

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charge would have put the NERC on notice to investigate such a claim, so Bunar’s hostile work

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environment claim is not reasonably related to the claims in her charge. Because Bunar did not

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timely exhaust this claim, I grant Aliante’s motion to dismiss it without leave to amend because

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amendment would be futile.

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C. Doe and Roe defendants

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Bunar has agreed to drop the Doe and Roe defendants in this case.

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III.

CONCLUSION
IT IS THEREFORE ORDERED that Aliante’s motion to dismiss (ECF No. 8) is

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GRANTED. Bunar’s hostile work environment claim (count three) is DISMISSED with

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prejudice. Bunar’s claims for discrimination under Nevada law (count four) and retaliation under

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Nevada law (count five) are DISMISSED with prejudice to the extent those claims are based on

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her termination and any acts taken before her termination. Counts four and five are dismissed

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without prejudice to the extent those claims are based on Aliante’s alleged opposition to Bunar’s

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request for unemployment benefits. Bunar’s claims against the Roe and Doe defendants are also

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dismissed.

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IT IS FURTHER ORDERED that, if sufficient facts exist, plaintiff Laura Bunar may file

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an amended complaint to assert counts four and five based on Aliante’s alleged opposition to

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Bunar’s request for unemployment benefits. The amended complaint, if Bunar chooses to file

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one, must be filed on or before August 31, 2017.

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DATED this 10th day of August, 2017.

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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