Daly v. DTE Energy Services, Inc. et al

Filing 18

ORDER denying 17 Motion to Extend Time; granting in part and denying in part 15 Motion to Dismiss. All Defendants are dismissed except Newmont Nevada Energy Investment LLC. The prayer for liquidated damages is stricken. Signed by Judge Robert C. Jones on 02/12/2014. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LENA K. DALY,
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Plaintiff,
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vs.
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DTE ENERGY SERVICES, INC. et al.,
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Defendants.
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3:13-cv-00222-RCJ-VPC
ORDER

This case arises out of the alleged sexual harassment and assault of Plaintiff by a

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coworker. Pending before the Court is a Motion to Dismiss (ECF No. 16). Plaintiff did not

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timely respond but requested an extension after time expired. For the reasons given herein, the

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Court grants the motion to dismiss in part.

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I.

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FACTS AND PROCEDURAL HISTORY
Plaintiff Lena K. Daly was formerly employed as a Material Handler for former defendant

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DTE Energy Services, Inc. (“DTE”). (Compl. ¶¶ 3–4, Apr. 30, 2013, ECF No. 1). During her

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employment, Plaintiff was subjected to a hostile workplace environment (“HWE”), including the

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word “bitch” being written on her overalls, being locked out of her locker, being refused medical

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attention when she was injured by safety officer Lee Melrose, bring assaulted, and receiving a

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death threat. (See id. ¶ 6). Plaintiff does not allege the perpetrators of the complained of acts, but

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Plaintiff presumably means to imply these acts were carried out by one or more of her co-

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workers. (See id.). Plaintiff complained of her treatment, and that she believed it was because of

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her gender, to her Shift Supervisor, Naomi Heneage, a Mr. Jason Marks, and Plant Manager

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Norm Duperronn. (Id. ¶¶ 7). In retaliation, unidentified persons at DTE requested that Heneage

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lower Plaintiff’s performance appraisal. (See id. ¶ 8).

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Eventually, DTE was taken over by the other Defendants, Newmont Nevada Energy

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Investment, LLC; Newmont USA Limited; Newmont Gold Company (collectively, “Newmont”

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or “Newmont Defendants”); and Nevada Energy Investment, LLC. (See id. ¶ 9). Plaintiff applied

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for employment with Newmont in the same position she had with DTE. (See id. ¶¶ 10–11).1

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Newmont did not hire Plaintiff, although it hired five other persons to perform the same job. (Id.

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¶ 12). Newmont refused to hire Plaintiff because DTE had informed Newmont of Plaintiff’s

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previous protected activity, i.e., her HWE complaints. (Id. ¶¶ 13–14).

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Plaintiff sued DTE; Newmont Nevada Energy Investment, LLC; Newmont USA Limited;

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Newmont Gold Company; and Nevada Energy Investment, LLC in this Court for: (1) HWE

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under Title VII and (2) retaliation under Title VII. The Clerk dismissed without prejudice as

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against DTE under Rule 4(m) for failure to timely serve process. The remaining Defendants

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minus Nevada Energy Investment, LLC (collectively, “Newmont Defendants”) have moved to

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dismiss for lack of subject matter jurisdiction and failure to state a claim.

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II.

LEGAL STANDARDS

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A.

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

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claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of

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what the . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47

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(1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action

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that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule

Dismissal

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Plaintiff does not explain whether Newmont, upon taking over DTE, required all
employees to reapply for their positions, or whether DTE in fact had terminated Plaintiff such
that the requirement to reapply was specific to Plaintiff, but she appears to imply the former.
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12(b)(6) tests the complaint’s sufficiency. See N. Star Int’l v. Ariz. Corp. Comm’n, 720

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F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for

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failure to state a claim, dismissal is appropriate only when the complaint does not give the

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defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is

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sufficient to state a claim, the court will take all material allegations as true and construe them in

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the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th

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Cir. 1986). The court, however, is not required to accept as true allegations that are merely

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conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden

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State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action

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with conclusory allegations is not sufficient; a plaintiff must plead facts pertaining to his own

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case making a violation plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 677–79

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(2009) (citing Twombly, 550 U.S. at 556) (“A claim has facial plausibility when the plaintiff

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pleads factual content that allows the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.”). In other words, under the modern interpretation of Rule

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8(a), a plaintiff must not only specify a cognizable legal theory (Conley review), but also must

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plead the facts of his own case so that the court can determine whether the plaintiff has any

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plausible basis for relief under the legal theory he has specified, assuming the facts are as he

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alleges (Twombly-Iqbal review).

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

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on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the

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complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard Feiner

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& Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, “documents

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whose contents are alleged in a complaint and whose authenticity no party questions, but which

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are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6)
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motion to dismiss” without converting the motion to dismiss into a motion for summary

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judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule

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of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay

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Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court

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considers materials outside of the pleadings, the motion to dismiss is converted into a motion for

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summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.

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2001).

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B.

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A charge under Title VII must be filed within 180 days after the occurrence of the alleged

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unlawful employment practice. 42 U.S.C. § 2000e–5(e)(1). However, where an aggrieved person

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has initially instituted proceedings with a state or local agency with authority to grant relief for

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such action, the charge must be brought within 300 days of the occurrence or within 30 days after

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receiving notification that the state or local agency has terminated its proceedings, whichever

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occurs earlier. Id. NERC is such a body in the state of Nevada. See Nev. Rev. Stat. § 233.150.

Title VII Jurisdiction and Time Limits

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Although filing a charge of discrimination with the EEOC is a jurisdictional prerequisite

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to a Title VII suit, “filing a timely charge of discrimination with the EEOC is not a jurisdictional

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prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject

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to waiver, estoppel, and equitable tolling.” Zipes v. TWA, 455 U.S. 385, 393 (1982) (emphasis

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added). The distinction is often of no practical significance, and courts sometimes still refer to

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the timeliness requirement as being jurisdictional. See, e.g., Vasquez v. Cnty. of L.A., 349 F.3d

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634, 644 (9th Cir. 2003) (“To establish subject matter jurisdiction over his Title VII retaliation

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claim, [the plaintiff] must have exhausted his administrative remedies by filing a timely charge

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with the EEOC.” (emphasis added)). But only the requirement to file a charge with the EEOC at

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some point in time is a jurisdictional prerequisite; the timeliness provision operates as a statute of

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limitations that may be waived, estopped, or tolled, because it appears in a separate provision of
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Title VII than does the jurisdictional grant. Zipes, 455 U.S. at 393–94; Surrell v. Cal. Water Serv.

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Co., 518 F.3d 1097, 1104–05 (9th Cir. 2008) (citing id.). Title VII’s exhaustion requirement

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limits the jurisdiction of federal courts to those claims that the EEOC has had an opportunity to

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examine, meaning those claims the EEOC actually adjudicates and any claims the plaintiff files

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with the EEOC but the EEOC fails to adjudicate or investigate. Vasquez, 349 F.3d at 644. In

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summary, there is federal jurisdiction over any Title VII claim a plaintiff has given the EEOC an

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opportunity to adjudicate, but a federal court will accept jurisdiction over and then dismiss any

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claim untimely presented to the EEOC, subject to waiver, estoppel, and equitable tolling.

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III.

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ANALYSIS
Newmont first notes that only “Newmont Mining Corp.” is listed on the Charge of

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Discrimination (“COD”) and that, accordingly, only Newmont Nevada Energy Investment, LLC

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(“NNEI”)—the entity’s proper name—received the Notice of COD (”Notice”). (See Mot. Ex. 1,

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ECF No. 15), not Newmont USA Limited or Newmont Gold Co.2 Newmont also notes that there

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is no such entity as Newmont Energy Investment, LLC, but that the proper name for the entity is,

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again, Newmont Nevada Energy Investment, LLC. The Court agrees and will dismiss as against

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all Defendants except NNEI.

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NNEI then asks the Court to dismiss both claims for failure to state a claim.

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To prevail on a hostile workplace claim premised on either race or sex, a
plaintiff must show: (1) that he was subjected to verbal or physical conduct of a racial
or sexual nature; (2) that the conduct was unwelcome; and (3) that the conduct was
sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment
and create an abusive work environment.

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Vasquez, 349 F.3d at 642. The Court rejects NNEI’s argument that the allegations are not

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directed toward a particular Defendant. The claims are directed toward DTE, the employer, and

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The COD clarifies some facts. It indicates that Plaintiff began working for DTE in April
2008, that Newmont took over in 2010, that Plaintiff was informed she would be laid off on July
1, 2010, and that Newmont did not hire back any female employees. (See COD, Feb. 11, 2011,
ECF No. 15-1, at 4).
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therefore at NNEI by succession liability, assuming this kind of liability can lie here. See. e.g.,

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Criswell v. Delta Airlines, Inc., 868 F.2d 1093, 1094 (9th Cir. 1989) (ruling that assuming

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continuity of operations, notice and ability to provide relief are the critical factors). Because no

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supervisory employees are specifically alleged to have caused the harassment, and even assuming

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Plaintiff could not show this—which she may in fat be able to after discovery—Plaintiff has

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already sufficiently alleged that supervisory employees failed to take corrective action after being

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made aware of the situation such that she has made out a prima facie case that DTE was

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indifferent to her working conditions in relevant respects. See Vance v. Ball State Univ., 133 S.

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Ct. 2434, 2439 (2013) (“If the harassing employee is the victim’s co-worker, the employer is

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liable only if it was negligent in controlling working conditions.”).
The other claim is against NNEI for its own alleged retaliation against Plaintiff, i.e., its

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refusal to hire her because of her previous protected activity.3 That claim is also sufficiently

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pled. Plaintiff specifically alleges that NNEI refused to hire her because of her complaints about

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the alleged HWE to her supervisors under DTE. She will have to prove these facts to obtain

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relief, but she has sufficiently alleged them. NNEI argues as if Plaintiff alleges retaliation by

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virtue of having been laid off by DTE in 2010. The Court does not perceive this to be the

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gravamen of the second claim. Indeed, the very fact of Plaintiff’s layoff by DTE can only be

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guessed at from the Complaint, see supra note 1. What is clear from the Complaint is that

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Plaintiff is aggrieved by NNEI’s refusal to (re)hire her, allegedly based upon her having

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complained in the past about the HWE issue to DTE. Therefore, Plaintiff’s failure to allege any

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causal link between her HWE complaint and her layoff by DTE is inapposite to any claim she has

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brought. She has indeed, however, alleged a causal link between her HWE complaint to DTE

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and NNEI’s refusal to (re)hire her. The fact that six months or more elapsed between the HWE

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Although it arises out of a refusal to hire, the claim does not appear to be for sex
discrimination directly, but for retaliation.
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complaint and Plaintiff’s termination by DTE and her failure to regain employment with NNEI

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only potentially weighs against a putative retaliation claim based upon the termination by DTE.

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In other words, one could reason that DTE did not retaliate for Plaintiff’s HWE claim when it

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terminated her, because it waited six months to do so, during which time it maintained a

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relationship with her. But the same logic does not follow as to NNEI’s refusal to (re)hire

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Plaintiff. NNEI’s decision not to (re)hire her was its first contact with Plaintiff. It had no

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existing, continuing relationship with her, so the fact that it took no action against her until she

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applied for employment six months after her HWE claim to DTE is factually uninteresting.

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Plaintiff alleges that the very first contact she had with NNEI was its refusal to hire her because

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of her having filed an HWE complaint in the past. That would be sufficient to support a

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retaliation claim against NNEI no matter how much time had passed between the past HWE

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complaint and the refusal to hire, and regardless of whether the HWE claim upon which the

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retaliation was based arose out of a relationship between Plaintiff and NNEI’s predecessor or

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some protected activity totally unrelated to NNEI. And Plaintiff need not plead the retaliation

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allegations with specificity under Rule 9(b), as NNEI implies on page 11 of its motion.

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Finally, the Court will strike the demand for “liquidated damages,” as requested. That

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measure of damages applies only to contracts with relevant clauses and certain other statutes, but

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not under Title VII.

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion for Extension of Time (ECF No. 17) is

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DENIED.
IT IS FURTHER ORDERED that the Motion to Dismiss (ECF No. 15) is GRANTED IN

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PART and DENIED IN PART. All Defendants are dismissed except Newmont Nevada Energy

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Investment, LLC. The prayer for liquidated damages is stricken.

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IT IS SO ORDERED.
Dated this 4th daydayFebruary, 2014.2014.
Dated this 12th of of February,

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_____________________________________
ROBERT C. JONES
United States District Judge

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