Cabrera et al v. Service Employees International Union et al

Filing 152

ORDER granting in part and denying in part 134 Motion for Reconsideration (see order for details); Motions due by 7/22/2020. Signed by Judge Richard F. Boulware, II on 5/19/2020. (Copies have been distributed pursuant to the NEF - JM)

Case 2:18-cv-00304-RFB-DJA Document 152 Filed 05/19/20 Page 1 of 19

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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CABRERA et al,

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Plaintiffs,

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Case No. 2:18-cv-00304-RFB-DJA
ORDER

v.
SERVICE EMPLOYEES INTERNATIONAL
UNION et al,
Defendants.

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I.

INTRODUCTION

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Before the Court is Plaintiffs’ Motion for Reconsideration (ECF No. 134).
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II.

PROCEDURAL BACKGROUND

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This case was removed to federal court on February 16, 2018. ECF No. 1. Plaintiffs filed
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the amended complaint on March 8, 2019. ECF No. 27. On May 10, 2019 Defendants Mary K.
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Henry and Service Employees International Union (“SEIU”) filed a Motion to Dismiss, ECF No.
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36, as did Defendants Blue, Clark County Public Employees Assoc., and Manteca, ECF No. 38.
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A hearing was held on the Motions to Dismiss and others on March 11, 2020. ECF No.
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131. The Court ruled, inter alia, that Plaintiffs’ first, second, third, and sixth Americans with
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Disabilities Act (“ADA”) claims, and tenth, eleventh, and twelfth Nevada state law discrimination
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claims warranted dismissal because Plaintiffs failed to adequately plead exhaustion of their
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administrative remedies. The Court relied on Ninth Circuit precedent to conclude that
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administrative exhaustion is a jurisdictional prerequisite, and that because Plaintiffs had failed to
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adequately plead exhaustion, the Court did not have subject matter jurisdiction over the ADA
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claims.

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Plaintiffs filed the instant Motion for Reconsideration on March 31, 2020. ECF No. 134.

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Defendants Luisa Blue, Clark County Public Employees Association, and Martin Manteca

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responded on April 14, 2020, ECF No. 140, as did Defendant SEIU, ECF No. 141. Plaintiffs

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replied on April 21, 2020. ECF Nos. 144, 146.

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Plaintiffs filed a Motion to Stay Summary Judgment Deadline on April 21, 2020, pending

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the Court’s ruling on the instant motion. The Court denied the motion but extended the dispositive

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motions deadline by two weeks while it considered the instant motion. ECF No. 151.

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III.

FACTUAL BACKGROUND

The Court includes only those facts relevant to the claims at issue in the instant Motion for
Reconsideration, as alleged in the Amended Complaint.

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Plaintiff Miller was employed with SEIU Local 1107 for nine years, from 2009 through

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2017. On September 13, 2017, after a rally at Rancho High School that was part of the Trustees

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new program, Miller collapsed in the parking lot at work while getting out of her car because the

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changes to her working schedule made her unable to keep her blood sugar levels in check. Miller

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had severe burning and stabbing pains in my legs after this fall.

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On September 25, 2017, while in Canada visiting her parents, Miller collapsed again, while
sitting in a chair at a restaurant.

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On September 28, 2017, Mrs. Miller visited her orthopedic doctor, Dr. Liu, due to her

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collapsing at work. Dr. Liu recommended that Mrs. Miller have x-rays of her hips, and two weeks

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of medical leave. That day, Mrs. Miller sent an email to her supervisors, Davere Godfrey, and

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Local 1107 Deputy Trustee Martin Manteca, informing them that Dr. Liu had recommended two

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weeks of medical leave, and requesting a meeting to discuss her medical condition upon her return

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from medical leave.

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Miller attended several appointments with her treating physicians who told her that due to

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the change in her working schedule, which caused her diabetic mellitus to worsen, she needed to

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request that Local 1107 give her a set work schedule or transfer her to a position with a set work

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schedule and less standing.
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On October 17, 2017, Miller informed the Trustees over Local 1107 of her medical

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condition and requested that she be given an accommodation to her schedule. She and NSEUSU

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alternatively requested that she be transferred to a front desk administrative position within the

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bargaining unit that was filled by a temporary employment agency employee.

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On October 19, 2017, Defendants sent Miller a formal letter regarding the October 17,

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2017 meeting requesting additional information because her doctor’s notes were insufficient due

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to failure to include a percentage of disability and description of how her disability affected her

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ability to perform the essential functions of her job. The letter also indicated it was unclear what

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the qualifying disability was. Defendants also noted that Miller requested leave to meet with her

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doctors to gather the requested information, asserting that the collective bargaining agreement did

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not provide such leave past thirty days, and after that she would be required to use her paid time

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off.

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On October 23, 2017, Miller met with Dr. Liu, who once again provided recommendations

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that Miller be provided accommodations in her job that required no more than “50% sitting and

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50% standing during her shift.” Dr. Liu’s second note was provided to Defendants.

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On October 26, 2017, the Trustees over Local 1107 sent Miller a letter denying her request

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to be placed in the open front desk position and a fixed schedule. The letter stated she had not

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explained how her impairment prevented her from working her current schedule or how it

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prevented her from performing her essential work duties, or how a desk job would help her manage

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her diabetes. Additionally, her transfer to a front desk position would create an undue hardship on

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Local 1107 because it would eliminate an essential job function and she did not qualify because

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she does not speak Spanish.

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That same day, Miller was sent an email from her supervisor Grace Vergara instructing her
to return to work on October 30, 2017.

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On October 30, 2017, Miller returned to work at Local 1107 and was informed that she

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would no longer be working her organizing territory of nearly ten years, the Saint Rose Hospitals.

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Miller was also informed that she had been demoted from lead organizer to organizer and told she

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would be working a new bargaining territory, the Clark County bargaining units, under another
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organizer. The new bargaining unit territory required far more walking than Miller’s prior

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organizing territory, as the territory was spread out amongst numerous county departments, and

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parking was limited. Miller protested Local 1107 increasing her work duties, rather than

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accommodating her disability, demoting her for requesting accommodations, and requested

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medical leave. Defendants required her to take paid time off.

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Plaintiff Javier Cabrera was the President of the NSEUSU up until his termination on

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October 30, 2017. In early October 2017, while Plaintiff Cabrera was serving as NSEUSU

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President, he assisted with and participated in initiating the interactive process between Plaintiff

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Miller and Local 1107 and requested that the SEIU International trustees provide Miller with

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reasonable accommodations for her diabetes disability including requesting that she be given a

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fixed schedule, to be exempt from the additional duties of organizers imposed by the trustees upon

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imposition of the trusteeship to facilitate the temporary SEIU International TWR campaign, and/or

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be transferred to the front desk position within the NSEUSU bargaining unit, a protected activity

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under 42 U.S.C. § 12203(a). Within less than three weeks from Plaintiff Cabrera’s participation in

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the interactive process to request that Defendants provide Miller with reasonable disability

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accommodations, Defendants terminated his employment.

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Plaintiff Miller asserted disability discrimination in violation of Title I of the ADA (first

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claim), retaliation in violation of the ADA (second claim), and disability harassment resulting in a

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hostile work environment in violation of the ADA (third claim). Plaintiff Cabrera asserted

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retaliation in violation of the ADA (sixth claim). Plaintiff Miller also asserted disability

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discrimination in violation of NRS 613.330(1) (tenth clam) and retaliation in violation of NRS

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613.340(1) (eleventh claim), and Plaintiff Cabrera asserted retaliation in violation of NRS

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613.340(1) (twelfth claim).

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IV.

LEGAL STANDARD

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A. Motion for Reconsideration

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The Court has discretion to grant or deny a motion for reconsideration. Navajo Nation v.

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Norris, 331 F.3d 1041, 1046 (9th Cir. 2003). Pursuant to Rule 60(b) of the Federal Rules of Civil
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Procedure, this Court may relieve the parties from its summary judgment order on various grounds,

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including the Court's mistake and any other reason that justifies relief. See Fed. R. Civ. P. 60(b).

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However, “[a] motion for reconsideration should not be granted, absent highly unusual

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circumstances, unless the district court is presented with newly discovered evidence, committed

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clear error, or if there is an intervening change in the controlling law.” Marlyn Nutraceuticals, Inc.

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v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (citation and quotation marks

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omitted). Motions for reconsideration are disfavored, and a movant may not repeat arguments

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already presented. D. Nev. Civ. R. 59-1(b). Conversely, “A motion for reconsideration may not be

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used to raise arguments or present evidence for the first time when they could reasonably have

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been raised earlier in the litigation.” Marlyn Nutraceuticals, 571 F.3d at 880 (internal quotations

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and citations omitted).

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B. Motion to Dismiss

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An initial pleading must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a). The court may dismiss a complaint for “failure

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to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In ruling on a motion

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to dismiss, “[a]ll well-pleaded allegations of material fact in the complaint are accepted as true and

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are construed in the light most favorable to the non-moving party.” Faulkner v. ADT Sec. Services,

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Inc., 706 F.3d 1017, 1019 (9th Cir. 2013) (citations omitted).

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To survive a motion to dismiss, a complaint need not contain “detailed factual allegations,”

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but it must do more than assert “labels and conclusions” or “a formulaic recitation of the elements

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of a cause of action....” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.

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v. Twombly, 550 U.S. 544, 555 (2007) ). In other words, a claim will not be dismissed if it contains

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“sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face,”

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meaning that the court can reasonably infer “that the defendant is liable for the misconduct

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alleged.” Id. at 678 (internal quotation and citation omitted). The Ninth Circuit, in elaborating on

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the pleading standard described in Twombly and Iqbal, has held that for a complaint to survive

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dismissal, the plaintiff must allege non-conclusory facts that, together with reasonable inferences
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from those facts, are “plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S.

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Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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V.

DISCUSSION

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Plaintiffs assert there has been an intervening change in law that warrants reconsideration

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of the Court’s order dismissing Plaintiffs’ ADA and Nevada state law claims. Specifically,

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Plaintiffs indicate that after briefing concluded on the Motions to Dismiss, the Supreme Court

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issued its decision in Fort Bend Cty. v. Davis, 139 S. Ct. 1843 (2019), which overturned Ninth

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Circuit precedent this Court relied upon in granting the Motions to Dismiss Plaintiffs’ ADA claims.

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The Court dismissed Plaintiffs’ ADA claims based on the Ninth Circuit’s holding in

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Sommatino v. United States, 255 F.3d 704 (9th Cir. 2001). “Title I incorporates provisions of Title

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VII of the Civil Rights Act of 1964, as amended” and “thereby incorporates Title VII's charge

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requirement.” Zimmerman v. Oregon Dep't of Justice, 170 F.3d 1169, 1177-78 (9th Cir. 1999).

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The Ninth Circuit in Sommatino noted that, “In order to bring a Title VII claim in district court, a

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plaintiff must first exhaust her administrative remedies.” 255 F.3d at 707 (citations omitted). The

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Court further noted that:

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The Supreme Court has held that the failure to file a timely EEOC
administrative complaint is not a jurisdictional prerequisite to a Title VII claim, but
is merely a statutory requirement subject to waiver, estoppel and equitable tolling.
A number of our circuit cases have also held that the administrative exhaustion
requirements under Title VII are not jurisdictional but are conditions precedent to
filing an action which a defendant may waive or be estopped from asserting.
However, our case law also holds that substantial compliance with the
presentment of discrimination complaints to an appropriate administrative agency
is a jurisdictional prerequisite. As we have explained, “[t]he jurisdictional scope of
a Title VII claimant's court action depends upon the scope of both the EEOC charge
and the EEOC investigation.” The district court has jurisdiction over any charges
of discrimination that are “like or reasonably related” to the allegations in the EEOC
charge, or that fall within the “EEOC investigation which can reasonably be
expected to grow out the charge of discrimination.” Our cases also instruct that
abandonment or failure to cooperate in the administrative process prevents
exhaustion and precludes judicial review.

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In cases where a plaintiff has never presented a discrimination complaint to
the appropriate administrative authority, we have held that the district court does
not have subject matter jurisdiction.

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Id. at 708-09 (citations omitted).

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Subsequent to briefing on the Motions to Dismiss in this case, the Supreme Court decided

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Fort Bend Cty., Texas v. Davis, in which it considered the question “whether Title VII’s charge-

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filing precondition to suit [is] a ‘jurisdictional’ requirement that can be raised at any stage of a

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proceeding; or . . . a procedural prescription mandatory if timely raised, but subject to forfeiture if

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tardily asserted.” 139 S. Ct. 1843, 1846 (2019). The Court held that “Title VII's charge-filing

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instruction is not jurisdictional,” but a “claim-processing rule[] that must be timely raised to come

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into play.” Id. Consequently, though Title VII’s charge-filing requirement is a mandatory claim-

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processing rule, “an objection based on a mandatory claim-processing rule may be forfeited ‘if the

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party asserting the rule waits too long to raise the point.’” Id. at 1849 (quoting Eberhart v. United

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States, 546 U.S. 12, 15 (2005)). Thus, the Court abrogated the Ninth Circuit’s holding in

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Sommatino that exhaustion is a jurisdictional prerequisite.

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At the hearing on the Motions to Dismiss, the Court dismissed Plaintiffs Miller and

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Cabrera’s ADA claims on the record, relying on Sommatino. The Court found that Miller had not

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pled that she exhausted her administrative remedies under the ADA in the Amended Complaint,

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though she attached a Notice of Right to Sue to her original Motion to Amend the pleadings. The

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Court noted that even if it were to consider the notice filed outside the pleadings as evidence that

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Plaintiff had exhausted her administrative remedies as to her Title I ADA claims, the Notice did

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not indicate which issues the Equal Employment Opportunity Commission (“EEOC”) considered,

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or provide any information about the nature of Plaintiff’s administrative complaint before the

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EEOC. The Court concluded it therefore had no opportunity to ascertain whether it had subject

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matter jurisdiction over Plaintiff’s ADA claims, because it could not determine the scope of both

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the EEOC charge and investigation, as necessitated by Sommatino. Consequently, the Court also

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could not determine whether Plaintiff Cabrera’s ADA claims were as alleged, “like or reasonably

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related to the allegations that were contained [in] Plaintiff Miller’s EEOC charge and thus properly
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before this Court.” ECF No. 27 at 23. Because Cabrera did not independently allege exhaustion,

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the Court found that he too had failed to adequately plead exhaustion of his administrative

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remedies. The Court also found that because Plaintiffs had failed to plead exhaustion as to their

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ADA claims and did not independently plead exhaustion as to their corresponding Nevada state

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law discrimination claims, claims ten, eleven, and twelve warranted dismissal.

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The Court committed clear error in applying Sommatino’s jurisdictional holding to

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Plaintiffs’ ADA claims. Accordingly, Plaintiffs move for reconsideration of dismissal of the first,

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second, third, sixth, tenth, eleventh, and twelfth claims. The Court therefore reconsiders the

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Motions to Dismiss as to Plaintiffs’ ADA claims in light of the Supreme Court’s holding in Fort

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Bend.

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Defendants argue Plaintiffs did not exhaust their ADA or Nevada state law claims. ECF

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No. 36 at 22-23; ECF No. 38 at 14. Plaintiff Miller responded that she did exhaust as evidenced

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by the EEOC Right to Sue letter attached to her Motion to Amend the complaint at ECF No. 17-

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1, and that she was not required to plead exhaustion because it is an affirmative defense. ECF No.

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47 at 15; ECF No. 48 at 11-12. Plaintiff Cabrera argued his ADA claims are reasonably related to

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Miller’s and therefore exhausted, id. at 15-16, and that he should not be penalized for failure to

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independently exhaust because it was unclear whether his ADA claim fell within the scope of the

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National Labor Relations Board’s jurisdiction over Miller’s unfair labor practice claim, id. at 17-

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18. Defendants replied the EEOC letter was not pled and should not therefore be considered and,

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in any event, fails to identify what claims Miller exhausted; consequently, Cabrera cannot plead

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his claims are “reasonably related” to Miller’s ADA claims. ECF No. 60 at 5-6.

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The Supreme Court has held that failure to exhaust is an affirmative defense that does not

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require a Plaintiff to specifically plead or demonstrate exhaustion in the complaint. Jones v. Bock,

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549 U.S. 199, 216 (2007) (treating the administrative exhaustion requirement under the Prison

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Litigation Reform Act as an affirmative defense). “Ordinarily, it is incumbent on the defendant to

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plead and prove such a defense . . . .” Taylor v. Sturgell, 553 U.S. 880, 907 (2008) (citing Jones,

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549 U.S. at 204). Nonetheless, “[a] complaint may be subject to dismissal under Rule 12(b)(6)

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when an affirmative defense ... appears on its face.” Jones, 549 U.S. at 215 (internal quotations
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and citations omitted).

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A. Miller’s ADA claims

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Plaintiffs attach Miller’s EEOC charge to the Motion for Reconsideration and Defendant

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SEIU argues that because Miller only checked the box for discrimination based on “disability” and

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did not check “retaliation” on the EEOC charge, and because Miller’s description of her grievance

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only emphasizes discrimination based on disability, the charge on its face indicates Miller failed

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to exhaust as to her retaliation and harassment claims (claims two and three). Plaintiff counters

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that this argument should be reserved for summary judgment and that Plaintiff’s retaliation and

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harassment claims relate to the alleged denial of reasonable accommodations and discrimination

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based on disability.

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As an initial matter, the Court need not convert the motion to a Motion for Summary

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Judgment merely because SEIU relies on the document Plaintiff herself attached to the Motion for

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Reconsideration. “A document is not considered ‘outside the pleading’ for purposes of Rule 12(b)

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‘if the complaint specifically refers to the document and if its authenticity is not questioned.’”

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Molina v. Los Angeles Cty., Dep't of Mental Health, 58 F. App'x 311, 313 (9th Cir. 2003) (quoting

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Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.1994), overruled on other grounds by Galbraith v.

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County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). See also Coto Settlement v. Eisenberg, 593

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F.3d 1031, 1038 (9th Cir. 2010) (“We have extended the doctrine of incorporation by reference to

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consider documents in situations where the complaint necessarily relies upon a document or the

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contents of the document are alleged in a complaint, the document's authenticity is not in question

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and there are no disputed issues as to the document's relevance.”). Plaintiffs explicitly refer to

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Miller’s EEOC charge in the complaint when asserting that Cabrera’s ADA claim is “like or

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reasonably related to the allegations that were contained Plaintiff Miller’s EEOC charge and thus

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properly before this Court.” ECF No. 27 at 23. Accordingly, the Court may consider the EEOC

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charge in deciding the Motions to Dismiss. See Molina, 58 F. App’x at 313 (holding that district

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court could reference EEOC charge without going outside the pleadings where Plaintiff’s

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complaint specifically referred to her EEOC charge and right-to-sue letter). Moreover, it was
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Miller who attached the document to the instant motion; she cannot therefore complain when

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Defendant relies on it to carry its burden to plead and prove an affirmative defense.

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A plaintiff has exhausted her administrative remedies if her claim “[falls] within the scope

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of the EEOC's actual investigation or an ‘EEOC investigation which can reasonably be expected

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to grow out of the charge of discrimination.’” E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 899 (9th

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Cir. 1994) (quoting Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir.1990) (emphasis in the

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original)). Courts “construe the language of EEOC charges with utmost liberality since they are

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made by those unschooled in the technicalities of formal pleading.” B.K.B. v. Maui Police Dep't,

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276 F.3d 1091, 1100 (9th Cir. 2002), as amended (Feb. 20, 2002) (internal quotations and citations

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omitted). “[T]the crucial element of a charge of discrimination is the factual statement contained

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therein.” Id. (internal quotations and citations omitted). “Allegations of discrimination not

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included in the plaintiff's administrative charge may not be considered by a federal court unless

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the new claims are like or reasonably related to the allegations contained in the EEOC charge.” Id.

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(internal citations and quotations omitted). Further:

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In determining whether a plaintiff has exhausted allegations that she did not specify
in her administrative charge, it is appropriate to consider such factors as the alleged
basis of the discrimination, dates of discriminatory acts specified within the charge,
perpetrators of discrimination named in the charge, and any locations at which
discrimination is alleged to have occurred. In addition, the court should consider
plaintiff's civil claims to be reasonably related to allegations in the charge to the
extent that those claims are consistent with the plaintiff's original theory of the case.

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Id. (citation omitted). “‘[T]he administrative charge requirement serves the important purposes of

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giving the charged party notice of the claim and narrowing the issues for prompt adjudication and

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decision.’” Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002) (quoting

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B.K.B., 276 F.3d at 1099).

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The EEOC charge attached to the instant motion indicates Plaintiff asserted discrimination

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based on “disability” by checking the box for “disability” discrimination but did not check the box

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for “retaliation” or indicate she was harassed. See ECF No. 134-2 at 2. The factual statement

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accompanying Plaintiff’s charge states:
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I have been employed by SEIU Local 1107, since in or around April 2009, most recently
as Lead Organizer. On or around October 16, 2017, I informed management regarding my
medical condition and need for a reasonable job accommodation. There is an
accommodation that would allow me to perform the essential functions of the job.

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I believe I was discriminated against because of my disability, in violation of the
Americans with Disabilities Act of 1990, as amended.

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Id. The factual statement is concise and does not actually indicate how Local 1107 discriminated

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against Miller, though the implication of the charge is that Defendant did not provide the

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reasonable accommodation as requested. The charge therefore makes clear Plaintiff exhausted her

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disability discrimination claim (claim one), but the statement does not explicitly mention either

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harassment or retaliation. Therefore, these allegations of discrimination are not included in

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Plaintiff's administrative charge and the appropriate inquiry is whether the retaliation and

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harassment claims (claims two and three) are “like or reasonably related” to the allegations as to

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disability discrimination contained in the EEOC charge.

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The Court considers the relevant factors identified by the Ninth Circuit in B.K.B. v. Maui

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Police Dep't to determine whether Miller has exhausted allegations that she did not specify in her

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administrative charge. First, the alleged basis of discrimination is disability discrimination for

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failure to provide Plaintiff a reasonable accommodation to perform her job. The basis of the

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discrimination does not include retaliation or harassment. Second, there is only one date specified

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within the charge, October 16, 2017. The complaint indicates that Plaintiff had a meeting with

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Local 1107 Deputy Trustee Martin Manteca, Organizing Coordinator Grace Vergara, Human

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Resources manager Melody Rash, and her union Vice President, Susan Smith on October 17, 2017,

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at which she presented doctors’ notes and requested reasonable accommodations or a transfer to a

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front desk position. ECF No. 27 at 7. The Court infers this meeting was the event referenced in

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the charge. Notably, Plaintiff indicated in the charge that October 16, 2017 (or thereabouts), was

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the “latest” date the discrimination took place and did not characterize the discrimination as a

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“continuing action,” despite filing the charge on March 1, 2018, see ECF No. 134-2 at 2, well after

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the events occurring after October 16, 2017, that form the basis of Plaintiff’s ADA claims in the
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complaint, see ECF No. 27 at 10.

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Though it is a close question, construing the charge with the utmost liberality as required,

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the Court finds that Plaintiff’s retaliation and harassment claims fall within the scope of an EEOC

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investigation which can reasonably be expected to grow out of the disability discrimination charge.

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Though Plaintiff’s factual statement only asserts she was denied a reasonable accommodation and

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the charge on its face limits this denial to a single date suggesting only a single incident occurred,

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a reasonable investigation of the failure to accommodate charge would necessarily investigate

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what, if anything, Local 1107 did in response to Plaintiff’s request. Such an investigation would

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likely reveal, as Plaintiff alleges, that Local 1107 not only failed to accommodate the request but

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changed the requirements for the front desk position and demoted Plaintiff. This alleged conduct

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serves as the basis for Plaintiff’s retaliation and harassment claims. Therefore, the retaliation and

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harassment claims are “like or reasonably related to the allegations” contained in the EEOC charge,

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thus Plaintiff has exhausted her administrative remedies for all of her ADA claims.

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The Court therefore grants the Motion for Reconsideration as to Plaintiff Miller’s ADA

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claims, denies the Motions to Dismiss as to these claims, and reinstates claims one, two, and three.

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B. Cabrera’s ADA claim

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“In Title VII . . . cases, federal courts have found that so long as one plaintiff timely files

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an administrative complaint, a class of similarly-situated plaintiffs may ‘piggyback’ on that

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complaint, thereby satisfying the exhaustion requirement.” Harris v. Cty. of Orange, 682 F.3d

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1126, 1136 (9th Cir. 2012). Additionally, “an aggrieved employee who fails to file a timely charge

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with the EEOC may still be able to pursue a claim under the piggyback or single-filing rule, in

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which the employee ‘piggyback[s]’ onto the timely charge filed by another plaintiff for purposes

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of exhausting administrative remedies.” Arizona ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189,

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1202 (9th Cir. 2016) (citing Harris, 682 F.3d at 1136). “The piggyback rule is a judicially created

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equitable tolling rule ‘based on the observation that it would be duplicative and wasteful for

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complainants with similar grievances to have to file identical notices of intent to sue with a

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governmental agency.’” Id. While the Ninth Circuit has not elucidated an explicit standard by
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which to determine whether a “similarly-situated” plaintiff may piggyback on another’s

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administrative complaint, courts in this circuit have held that the rule may apply outside of the

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class action and collective action context so long as the relevant claim involves the “‘same or

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similar discriminatory conduct, committed in the same period,’ of which both the EEOC and the

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employer had notice.’” Martinez v. Victoria Partners, No. 2:12-CV-502-JAD-VCF, 2014 WL

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1268705, at *6 (D. Nev. Mar. 27, 2014) (quoting Horton v. Jackson Cty. Bd. of Cty. Comm'rs.,

7

343 F.3d 897, 899 (7th Cir. 2003)). “[A] single charge of discrimination may be sufficient to put

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an employer on notice that additional people may be subject to the same unlawful employment

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practices.” Arizona ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189, 1203 (9th Cir. 2016), cert.

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denied sub nom. Geo Grp., Inc. v. EEOC, 137 S. Ct. 623 (2017).

11

In response to the Motion for Reconsideration, Defendant Local 1107 impliedly concedes

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that Miller has exhausted her administrative remedies, but asserts that the Amended Complaint

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“affirmatively alleges” that Plaintiff Cabrera failed to exhaust administrative remedies and that

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Fort Bend does not provide support for Cabrera’s allegation that his ADA claims are “reasonably

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related” to Miller’s ADA claims and therefore do not require exhaustion. ECF No. 140 at 3-4.

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Similarly, SEIU argues in response that Cabrera conceded in his response to the original Motion

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to Dismiss that he did not fulfill the charging requirements either of the ADA or of Nevada state

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law because he was confused. ECF No. 141 at 6-7 (citing ECF No. 47 at 17). Local 1107 further

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argues that Cabrera’s claims fall within the NLRB’s jurisdiction, as evidenced by the NLRB’s

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conclusion in its decision that Cabrera was engaged in union activities when he advocated on

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behalf of staff members as President of the Staff Union. Id. at 4 (citing Serv. Employees Int'l Union

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Local 1107 Respondent & Javier Cabrera, an Individual Charging Party, No. 28-CA-209109, 2019

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WL 3283303 (July 18, 2019), ECF No. 56-1).

24

Cabrera contends that his ADA claims are “like or reasonably related” to Miller’s ADA

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claims, such that his failure to exhaust does not otherwise prove fatal to his ability to have his

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claims heard in federal court. Cabrera conflates two related yet distinct inquiries. The “like or

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reasonably related” standard applies when the inquiry is whether a plaintiff’s civil claims are “like

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or reasonably related” to allegations in the administrative charge such that the claims are properly
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before the court. This standard necessarily assumes an administrative charge was filed. By

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contrast, the “piggyback” rule considers whether one plaintiff who has failed to independently

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exhaust administrative remedies may rely on the administrative charge of a similarly-situated

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plaintiff to satisfy exhaustion. The former inquiry concerns the appropriateness of claims before

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the Court; the latter concerns whether a particular plaintiff has satisfied the mandatory claims-

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processing rules and is properly before the Court. The latter inquiry necessarily comes first when,

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as here, a plaintiff has failed to independently exhaust his administrative remedies. To conclude

8

otherwise would allow Cabrera to usurp the mandatory claims-processing rules simply because he

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alleges his ADA claim is like or reasonably related to Miller’s.

10

Thus, because it is evident from the face of the Amended Complaint that Cabrera failed to

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exhaust his administrative remedies, the appropriate initial inquiry is whether he may “piggyback”

12

off Miller’s administrative charge, such that he is relieved of the necessity of filing an

13

administrative claim. The Court finds that Cabrera is not similarly situated to Miller and may not

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therefore piggyback off her administrative charge. As discussed supra, Miller’s ADA claims arise

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from Local 1107’s alleged failure to accommodate her disability, and her retaliation and

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harassment claims are necessarily tied to that alleged failure. By contrast, Cabrera does not claim

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to suffer from a disability or that he sought a reasonable accommodation and was denied, rather

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he claims that he was retaliated against in violation of the ADA for advocating on behalf of

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Plaintiff Miller. Consequently, Miller and Cabrera did not suffer from the “same or similar

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discriminatory conduct, committed in the same period.” Horton, 343 F.3d at 899. Further, nowhere

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in Miller’s charge is there any indication that Local 1107’s alleged discriminatory conduct was

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perpetrated against or affected anyone but Miller, and even if there were, such a charge would not

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contemplate a plaintiff like Cabrera, whose own claim indicates he did not suffer from the kind of

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discriminatory conduct alleged in the charge. Therefore, neither the EEOC nor Local 1107 would

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have notice of the claim Cabrera now asserts. Consequently, the separate retaliation claims asserted

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by Plaintiffs are alike in name only. Thus, even assuming, arguendo, that Cabrera’s retaliation

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claim is like or reasonably related to the allegations in Miller’s administrative charge, this would

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not otherwise relieve Cabrera of his obligation, as a plaintiff not similarly situated to Miller, to file
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his own administrative charge. A mandatory claims-processing rule is just that—mandatory.

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Cabrera admits he did not file an administrative charge and the Court finds he cannot piggyback

3

off Miller’s. As such, the Court denies the Motion for Reconsideration as to Cabrera’s ADA claim

4

and declines to reinstate the sixth claim for relief.

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6

C. Nevada state law claims

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Defendants collectively assert that Fort Bend does not apply to Plaintiffs’ disability

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discrimination claims under Nevada state law and that Nevada law considers administrative

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exhaustion requirements to be jurisdictional; as Plaintiffs failed to plead exhaustion of the Nevada

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state law claims (claims ten, eleven, and twelve), these claims must be dismissed. Plaintiffs counter

11

that Fort Bend does apply because the Nevada Supreme Court has previously held that the Court

12

looks to federal courts for guidance in discrimination claims. ECF No. 144 at 10 (citing Pope v.

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Motel 6, 114 P.3d 277, 280 (Nev. 2005)).

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

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because of his or her race, color, sex, religion, sexual orientation, age, disability or national origin.

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However, NRS 613.420 requires an employee alleging employment discrimination to exhaust her

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administrative remedies by filing a complaint with [the Nevada Equal Rights Commission

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(“NERC”)] before filing a district court action.” Pope v. Motel 6, 114 P.3d 277, 280 (Nev. 2005)

19

(citation omitted). The Nevada Supreme Court has held that “an employee claiming discrimination

20

under NRS 613.420 is obligated to file a claim with the NERC and to have that agency adjudicate

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the claim before it can properly be brought in district court.” Palmer v. State, 787 P.2d 803, 804

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(Nev. 1990) (citing Copeland v. Desert Inn Hotel, 673 P.2d 490 (Nev. 1983)). In Palmer v. State,

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the Nevada Supreme Court carved out a narrow exception to the exhaustion requirement, holding

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that exhaustion is not required when “a complainant may face a statute of limitations deadline or

25

an irretrievable loss of evidence” because of prolonged inaction by the NERC on the administrative

26

claim. Id. at 805. Crucially however, the Court concluded: “Nevertheless, because the basic policy

27

of the statute favoring exhaustion of administrative remedies must be respected, it will always be

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the complainant's burden to convincingly prove that his or her claim is realistically endangered by
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any prolonged inaction by the NERC. Absent such evidence, the exhaustion doctrine will apply.”

2

In Allstate Ins. Co. v. Thorpe the Nevada Supreme Court noted that it had previously

3

reasoned that a failure to exhaust deprives a district court of subject matter jurisdiction but

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subsequently held that it renders a matter unripe for review. 170 P.3d 989, 993 (Nev. 2007). The

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Court went on to state:

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7
8
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[W]hether couched in terms of subject-matter jurisdiction or ripeness, a person generally
must exhaust all available administrative remedies before initiating a lawsuit, and failure
to do so renders the controversy nonjusticiable. The exhaustion doctrine gives
administrative agencies an opportunity to correct mistakes and conserves judicial
resources, so its purpose is valuable; requiring exhaustion of administrative remedies often
resolves disputes without the need for judicial involvement.

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Id. at 993-94. The Court has subsequently reiterated this holding. See, e.g.,

Mesagate

Homeowners' Ass'n v. City of Fernley, 194 P.3d 1248, 1252 (Nev. 2008) (citing Allstate, 170 P.3d
at 993-94); Miz Lola's Spirits & Gaming, LLC v. Cty. of Clark, 129 Nev. 1139 (2013) (citing
Mesagate, 194 P.3d at 1252).
Thus, while it is clear that Plaintiffs are required to exhaust their administrative remedies
with the NERC before initiating suit in this Court, because the Nevada Supreme Court has not
indicated whether NRS 613.420 is a jurisdictional or mandatory claims-processing rule, it is not
clear whether Plaintiffs were required to plead exhaustion in order to seek relief for alleged
disability discrimination and retaliation under the state statute, or whether this burden fell upon
Defendants in the form of an affirmative defense. Fort Bend provides no guidance on this question
as the Supreme Court considered federal law in that case, and though the Nevada Supreme Court
has noted that it looks to federal law for guidance in discrimination claims, this Court is unwilling
to rely on that dicta to definitively decide the nature of exhaustion and its effect on state law
discrimination claims.
The Court need not decide this issue however, because Defendants SEIU and Henry
represented in their Motion to Dismiss that Nevada has a “work sharing agreement” with the
EEOC, such that “exhaustion of administrative remedies with either [the EEOC or NERC]
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1

constitutes exhaustion with both entities.” ECF No. 36 at 22 (quoting Pulsipher v. Clark Cty., Case

2

No. 208-cv-01374-RCJ-LRL, 2010 WL 3781809, at *5 n.5 (D. Nev. Sept. 20, 2010)). See also

3

Cooper v. Eighth Judicial Dist. Court in & for Cty. of Clark, No. 74907, 2018 WL 3222743, at *2

4

(Nev. App. June 18, 2018) (citing Narayanan v. Nevada ex rel. Bd. of Regents of Nev. Sys. of

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Higher Educ. ex rel. Univ. of Nev., Reno, No. 3:11-CV-00744-LRH-VPC, 2013 WL 2394934, at

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*5 (D. Nev. May 30, 2013); Pulsipher v. Clark Cty., No. 2:08-CV-01374-RCJ-LRL, 2010 WL

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3781809, at *5 n.5 (D. Nev. Sept. 20, 2010); Puryear v. Cty. of Roanoke, 214 F.3d 514, 518 n.4

8

(4th Cir. 2000)) (“[F]ederal courts have held that filing with one entity constitutes filing with both

9

entities, such that [Plaintiff] exhausted her administrative remedies by filing her claim with the

10

EEOC.”); Fort Bend, 139 S. Ct. at 1846 (“If the state or local agency has a ‘worksharing’

11

agreement with the EEOC, a complainant ordinarily need not file separately with federal and state

12

agencies. She may file her charge with one agency, and that agency will then relay the charge to

13

the other.”); Nickler v. Clark Cty., No. 19-15761, 2020 WL 710229, at *1 (9th Cir. Feb. 12, 2020)

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(citing Laquaglia v. Rio Hotel & Casino, Inc., 186 F.3d 1172, 1174-75 (9th Cir. 1999) (“On appeal,

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[Plaintiff] alleges that there is a worksharing agreement between the EEOC and the Nevada Equal

16

Rights Commission that would render her claims timely. There are sufficient indicia in our caselaw

17

that such an agreement exists and would be relevant to the timeliness of the claims.”). Indeed, the

18

EEOC charge attached to the Motion for Reconsideration states that by signing the document,

19

Miller indicated “I want this charge filed with both the EEOC and the State or local Agency, if any

20

. . . .” ECF No. 134-2 at 2. The attached letter from the EEOC indicates that once Miller’s signed

21

EEOC charge form was received, the EEOC would forward a copy to the NERC, which the EEOC

22

advised would “investigate and resolve the charge under their statute” if the NERC “processes the

23

charge.” Id. at 3.

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Additionally, the statute governing the NERC suggests that there is indeed some

25

cooperation between that body and the EEOC. Nevada Revised Statutes § 233.160(1) states that a

26

complaint alleging unlawful discrimination “is timely if it is filed with an appropriate federal

27

agency within that period.” Further, it states, “A complainant shall not file a complaint with the

28

Commission if any other state or federal administrative body or officer which has comparable
17

Case 2:18-cv-00304-RFB-DJA Document 152 Filed 05/19/20 Page 18 of 19

1

jurisdiction to adjudicate complaints of discriminatory practices has made a decision upon a

2

complaint based upon the same facts and legal theory.” Nev. Rev. Stat. § 233.160(1).

3

Therefore, because the Court has found that Miller has exhausted her administrative

4

remedies as to her ADA claims, this alone may be sufficient to satisfy exhaustion of her

5

corresponding disability discrimination and retaliation state law claims. At the very least, the

6

complaint contains sufficient facts for the Court to reasonably infer that Miller has stated plausible

7

claims for relief on her state discrimination claims. The Court cautions that it does not conclude

8

Miller has proven that she has exhausted her administrative remedies with the NERC. Rather, the

9

Court has concluded that the complaint contains sufficient factual information to defeat a Motion

10

to Dismiss based on failure to exhaust. Defendants are therefore free to re-assert the argument in

11

a subsequent motion for summary judgment.

12

The same may not be said for Cabrera, however. As with his ADA claim, Cabrera alleges

13

his state retaliation claim “is reasonably related to the allegations that were contained in Plaintiff

14

Miller’s EEOC charge . . . .” ECF No. 27 at 39. This assertion makes plain Cabrera did not exhaust

15

his administrative remedies with the NERC and as discussed supra, it matters not whether his

16

claim is “like or reasonably related” to Miller’s for purposes of ascertaining whether he has

17

adequately exhausted his administrative remedies. The Nevada Supreme Court has clearly held

18

that exhaustion is required. Because Cabrera has failed in this regard, his state discrimination claim

19

may not proceed.

20

The Court therefore grants the Motion for Reconsideration as to Miller’s state law

21

discrimination claims, denies the Motions to Dismiss as to these claims, and reinstates claims ten

22

and eleven. The Court denies the Motion for Reconsideration as to Cabrera’s state law

23

discrimination claim and declines to reinstate claim twelve.

24

//

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//

26

//

27

//

28

//
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1

VI.

CONCLUSION

2

IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Reconsideration (ECF No.

3

134) is GRANTED in part and DENIED in part as discussed in this order. Claims one, two, three,

4

ten, and eleven are reinstated and may proceed. Claims six and twelve remain dismissed.

5

IT IS FURTHER ORDERED that the dispositive motions deadline is extended an

6

additional sixty (60) days. The parties shall have until July 22, 2020 to file dispositive motions in

7

this action.

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9

DATED May 19, 2020.

10

__________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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