Wagner v. Washoe County et al

Filing 16

ORDERED that Defendants' # 7 Motion to Dismiss is GRANTED. Ds Washoe County Health District, Mary Anderson, Robert Sack, and Dave McNinch are not proper defendants to this case and are dismissed from the action. FURTHER ORD Amended Complaint due by 4/27/2012. Signed by Judge Edward C. Reed, Jr on 3/30/2012. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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BRYAN WAGNER,
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Plaintiff,
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vs.
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WASHOE COUNTY HEALTH DISTRICT,
11 WASHOE COUNTY, MARY ANDERSON,
ROBERT SACK, and DAVE McNINCH,
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Defendants.
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3:11-cv-00537-ECR-RAM

Order

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On July 26, 2011, Plaintiff Bryan Wagner filed a complaint

16 alleging age discrimination and retaliation against Defendants.

On

17 August 31, 2011, Defendants Washoe County Health District, Mary
18 Anderson, Robert Sack, and Dave McNinch filed a Motion to Dismiss
19 (#7).

On November 21, 2011, Defendant Washoe County joined (#14) in

20 the Motion to Dismiss (#7).

On September 29, 2011, after a

21 stipulated extension of time to respond, Plaintiff filed his
22 opposition (#11) to the Motion (#7).

On October 7, 2011, Defendants

23 filed a reply (#12).
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Plaintiff’s complaint alleges age discrimination and

25 retaliation in violation of the Age Discrimination in Employment Act
26 of 1967 (“ADEA”).

Plaintiff alleges that he was hired by Washoe

27 County Health District in 1994, and was harassed and discriminated
28 against due to his age in 2009.

The ADEA’s provisions are limited

1 to individuals over the age of forty (40).

29 U.S.C. § 631(a).

2 Plaintiff failed to allege that he is over forty, and his opposition
3 (#11) does not address this oversight.

As such, Plaintiff’s

4 complaint (#1) fails to sufficiently allege age discrimination under
5 the ADEA.

Plaintiff will be granted leave to amend, and should

6 provide more specific factual allegations relating to his
7 discrimination and retaliation claims.
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Defendants also contest the inclusion of Washoe County Health

9 District as a defendant in this action.

Under Nevada law, an action

10 may be brought against “the State of Nevada or any political
11 subdivision of the state.”

NEV . REV . STAT . § 41.031(2). In Wayment v.

12 Holmes, the Nevada Supreme Court found that the Washoe County
13 District Attorney’s Office “is not a suable entity because it is a
14 department of Washoe County, not a political subdivision.”
15 816, 819 (Nev. 1996).

912 P.2d

“The State of Nevada has not waived immunity

16 on behalf of its departments of political subdivisions.”

Id.

As

17 such, the Washoe County Health District must be dismissed from this
18 action.
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Finally, Defendants argue that the individual defendants in

20 this case must be dismissed, as there is no individual liability
21 under the ADEA.

Miller v. Maxwell’s Intern. Inc., 991 F.2d 583,

22 587-88 (9th Cir. 1993).

Plaintiff “concedes Miller is the precedent

23 in the 9th Circuit” although Plaintiff urges this Court to hold that
24 Miller is incorrect.

Miller is binding precedent on this Court, and

25 furthermore, other courts, both at the district court level and at
26 the circuit level, have cited Miller with approval.

See, e.g.,

27 Fantini v. Salem State College, 557 F.3d 22, 30 (1st Cir. 2009)
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1 (“[a]fter reviewing the analysis fashioned by all of our sister
2 circuits, we . . . determine as they have that there is no
3 individual employee liability under Title VII”); Lam v. San
4 Francisco, No. C 08-4702 PJH, 2010 WL 235081, at *9 (N.D. Cal. Jan.
5 21, 2010) (“the Ninth Circuit has made clear that ‘Title VII . . .
6 limit[s] civil liability to the employer.’”) (citation omitted).

As

7 such, the individual defendants in this case must be dismissed.
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IT IS, THEREFORE, HEREBY ORDERED that Defendants’ Motion to

10 Dismiss (#7) is GRANTED.

Defendants Washoe County Health District,

11 Mary Anderson, Robert Sack, and Dave McNinch are not proper
12 defendants to this case and are dismissed from the action.
13 Furthermore, Plaintiff’s claims against Washoe County must be
14 dismissed for failure to state a claim upon which relief may be
15 granted.
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IT IS FURTHER ORDERED that Plaintiff shall have twenty-eight

17 (28) days within which to file an amended complaint addressing the
18 deficiencies noted in our Order.
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21 DATED: March ______, 2012.
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UNITED STATES DISTRICT JUDGE

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