Wagner v. Washoe County et al

Filing 29

ORDER denying 21 Motion to Dismiss. Signed by Judge Edward C. Reed, Jr on 9/25/12. (Copies have been distributed pursuant to the NEF - JC)

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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,
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Defendant.
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3:11-cv-00537-ECR-RAM

Order

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I. Background

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

16 alleging age discrimination and retaliation.

On March 30, 2012, the

17 Court dismissed (#16) Plaintiff’s complaint and granted leave to
18 amend.

On April 24, 2012, Plaintiff filed an amended complaint

19 (#19).

On May 7, 2012, Defendant Washoe County filed a second

20 motion to dismiss (#21), claiming that the amended complaint (#19)
21 must be dismissed for failure to state a claim upon which relief may
22 be granted.
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The facts as alleged in the amended complaint (#19) are as

24 follows.

Plaintiff was born on November 8, 1954.

(Am. Compl. ¶ 4.)

25 Plaintiff was hired in 1994 by Defendant Washoe County.

(Id. ¶ 5.)

26 In 2009, Plaintiff was assigned to an increasing number of menial
27 tasks in comparison to younger workers.

(Id. ¶ 6.)

Plaintiff’s

28 projects were ignored in favor of younger employees’ projects, and

1 Plaintiff was subjected to different terms and conditions of
2 employment than younger employees.

(Id.)

In December 2009,

3 Plaintiff was passed over for promotion as a result of his age;
4 although Plaintiff had a longer total time in service, a superior
5 educational background, and higher overall qualifications, a
6 younger, less qualified candidate was selected for promotion.
7 ¶ 7.)

(Id.

In addition, Plaintiff alleges that Washoe County follows a

8 standard custom and pattern of discriminating and harassing older
9 employees; for example, the Division Director of Environmental
10 Health directed another older employee to retire to make room for a
11 younger employee.
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(Id. ¶ 8.)

Plaintiff also alleges that he was retaliated against due to

13 his complaints concerning the alleged age discrimination.

In March

14 17, 2010, Plaintiff was subjected to an investigation as a result of
15 Plaintiff’s formal complaint concerning age discrimination.
16 19.)

(Id. ¶

Plaintiff was issued a letter of reprimand which was later

17 rescinded on appeal and replaced by a letter of expectations.

(Id.)

18 Plaintiff also alleges that his friends at Washoe County were
19 threatened by supervisors due to their friendship with him.
20 20.)

(Id. ¶

Plaintiff also alleges that he was repeatedly criticized and

21 harassed as retaliation against his age discrimination claim.

(Id.

22 ¶¶ 22-27.)
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II. Legal Standard
A motion to dismiss under Federal Rule of Civil Procedure

26 12(b)(6) will only be granted if the complaint fails to “state a
27 claim to relief that is plausible on its face.”
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Bell Atl. Corp. v.

1 Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 129
2 S. Ct. 1937, 1953 (2009) (clarifying that Twombly applies to
3 pleadings in “all civil actions”).

On a motion to dismiss, except

4 where a heightened pleading standard applies, “we presum[e] that
5 general allegations embrace those specific facts that are necessary
6 to support the claim.”

Lujan v. Defenders of Wildlife, 504 U.S.

7 555, 561 (1992) (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S.
8 871, 889 (1990)) (alteration in original); see also Erickson v.
9 Pardus, 551 U.S. 89, 93 (2007) (noting that “[s]pecific facts are
10 not necessary; the statement need only give the defendant fair
11 notice of what the . . . claim is and the grounds upon which it
12 rests.”) (internal quotation marks omitted).

Moreover, “[a]ll

13 allegations of material fact in the complaint are taken as true and
14 construed in the light most favorable to the non-moving party.”

In

15 re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1403 (9th Cir. 1996)
16 (citation omitted).
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Although courts generally assume the facts alleged are true,

18 courts do not “assume the truth of legal conclusions merely because
19 they are cast in the form of factual allegations.”
20 Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

W. Mining
Accordingly,

21 “[c]onclusory allegations and unwarranted inferences are
22 insufficient to defeat a motion to dismiss.”

In re Stac Elecs., 89

23 F.3d at 1403 (citation omitted).
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Review on a motion pursuant to Fed. R. Civ. P. 12(b)(6) is

25 normally limited to the complaint itself.
26 250 F.3d 668, 688 (9th Cir. 2001).

See Lee v. City of L.A.,

If the district court relies on

27 materials outside the pleadings in making its ruling, it must treat
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1 the motion to dismiss as one for summary judgment and give the non2 moving party an opportunity to respond.

FED . R. CIV . P. 12(d);

3 see United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003).

“A

4 court may, however, consider certain materials — documents attached
5 to the complaint, documents incorporated by reference in the
6 complaint, or matters of judicial notice — without converting the
7 motion to dismiss into a motion for summary judgment.”

Ritchie, 342

8 F.3d at 908.
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If documents are physically attached to the complaint, then a

10 court may consider them if their “authenticity is not contested” and
11 “the plaintiff’s complaint necessarily relies on them.”

Lee, 250

12 F.3d at 688 (citation, internal quotations, and ellipsis omitted).
13 A court may also treat certain documents as incorporated by
14 reference into the plaintiff’s complaint if the complaint “refers
15 extensively to the document or the document forms the basis of the
16 plaintiff’s claim.”

Ritchie, 342 F.3d at 908.

Finally, if

17 adjudicative facts or matters of public record meet the requirements
18 of Fed. R. Evid. 201, a court may judicially notice them in deciding
19 a motion to dismiss.

Id. at 909; see FED . R. EVID . 201(b) (“A

20 judicially noticed fact must be one not subject to reasonable
21 dispute in that it is either (1) generally known within the
22 territorial jurisdiction of the trial court or (2) capable of
23 accurate and ready determination by resort to sources whose accuracy
24 cannot reasonably be questioned.”).
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III. Discussion

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A. Age Discrimination Claim

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Washoe County claims that the age discrimination claim must be

4 dismissed because the amended complaint (#19) includes only legal
5 conclusions and not factual allegations.

We disagree.

The Age

6 Discrimination in Employment Act (“ADEA”) makes it unlawful for an
7 employer “to fail or refuse to hire or to discharge any individual
8 or otherwise discriminate against any individual with respect to his
9 compensation, terms, conditions, or privileges of employment,
10 because of such individual’s age.”

29 U.S.C. § 623(a).

To

11 establish a prima facie case of age discrimination, a plaintiff must
12 demonstrate that he was (1) at least forty years old, (2) performing
13 his job satisfactorily, (3) subjected to an adverse employment
14 action; and (4) was replaced by a substantially younger employee
15 with equal or inferior qualifications.

See Diaz v, Eagle Produce

16 Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008).
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We disagree with Washoe County’s contention that the amended

18 complaint (#19) contains insufficient factual allegations to support
19 an age discrimination claim. The amended complaint (#19) clearly
20 sets forth Plaintiff’s age, over forty, and multiple specific
21 allegations of age discrimination.

For example, Plaintiff alleges

22 that he was passed over for promotion in December 2009 in favor of a
23 younger, less qualified candidate. (Am. Compl. ¶ 7 (#19).)

We

24 believe that the allegations in the amended complaint (#19) are
25 sufficient to survive a motion to dismiss.
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B. Retaliation Claim

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Washoe County claims that the retaliation claim must be

3 dismissed because any suggestion of retaliation is purely
4 speculative.

We disagree that Plaintiff has failed to provide

5 specific factual allegations relating to his retaliation claim, as
6 the amended complaint (#19) sets forth in great detail allegations
7 of retaliation.
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However, Washoe County’s argument that the alleged acts of

9 retaliation do not rise to the level of adverse employment action
10 merits consideration.1

A plaintiff may establish a prima facie case

11 of retaliation by showing that “(1) he engaged or was engaging in
12 activity protected under Title VII, (2) the employer subjected him
13 to an adverse employment decision, and (3) there was a causal link
14 between the protected activity and the employer’s action.”
15 v. Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987).

Yartzoff

In Yartzoff, the

16 Ninth Circuit noted that “[t]ransfers of job duties and undeserved
17 performance ratings, if proven, would constitute ‘adverse employment
18 decisions.’” Id. at 1376. Plaintiff alleges, inter alia, that he was
19 subjected to an internal investigation that resulted in an
20 undeserved letter of reprimand following his formal complaint of age
21 discrimination.

While not all of Plaintiff’s extensive allegations

22 concerning retaliation may rise to the level of adverse employment
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The Court notes that Washoe County made this argument in its
reply, thereby preventing Plaintiff from responding to the argument.
While the Court does not approve of such tactics or oversights in the
initial motion to dismiss, the Court shall consider this argument as
it fairly characterizes a possible deficiency in the retaliation
claim.

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1 actions, we find that Plaintiff has alleged facts sufficient to
2 support a claim of retaliation.
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IV. Conclusion
IT IS, THEREFORE, HEREBY ORDERED that Defendant’s second motion

6 to dismiss (#21) is DENIED.
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11 DATED: September 25, 2012.
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____________________________
UNITED STATES DISTRICT JUDGE

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