Hulery v. NV Energy, Inc. et al

Filing 30

ORDER granting Defendants' 6 Motion to Dismiss, dismissing complaint without prejudice. Plaintiff may file an amended complaint within 15 days. (Amended Complaint deadline: 9/24/2014.) Signed by Judge Miranda M. Du on 9/9/2014. (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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BRAE HULERY,

Case No. 3:13-cv-00455-MMD-WGC
Plaintiff,

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v.

ORDER

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NV ENERGY, INC. and CATINA RITTER,
an employee of NV Energy, et al,

(Def’s Motion to Dismiss – dkt. no. 6)

Defendants.

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I.

SUMMARY

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Before the Court is Defendants NV Energy, Inc. (“NV Energy”) and Catina Ritter’s

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Motion to Dismiss (“Motion”). (Dkt. no. 6.) For the reasons set out below, the Motion is

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granted.

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II.

BACKGROUND

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Plaintiff Brae Hulery filed the Complaint in district court in the State of Nevada,

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Washoe County, and Defendants removed to this Court on August 23, 2013. (Dkt. no. 1.)

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The Complaint alleges the following. Plaintiff was an employee of Defendant NV

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Energy. (Dkt. no. 1-1, Ex. 1 at ¶ 6.) Defendant Ritter became a manager for Plaintiff’s

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crew in October, 2012. (Id. at ¶ 7.) Plaintiff’s crew was led by Gary Bailey. (Id.) Ritter

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instituted a crew change switching Plaintiff to Andy Byrd’s crew. (Id. at ¶ 7-8.) On or

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about December 4, 2012, Plaintiff complained to Ritter that Plaintiff had been granted a

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request to be removed from Byrd’s crew in the past because of Byrd’s “inappropriate[]

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screaming, yelling, and exhibiting inappropriate behavior . . . .” (Id. at ¶ 9.) Plaintiff thus

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asked to remain on Bailey’s crew instead. (Id.) Ritter “kept Plaintiff on Byrd’s crew and

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instructed Plaintiff as a solution for Plaintiff to stay away from Byrd.” (Id.) Bailey spoke to

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Ritter and asked that Plaintiff stay on his crew but Ritter denied his request, advising him

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that she was trying to “balance the crews.” (Id. at ¶10.)

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On or about December 21, 2012, Plaintiff was called on “to start up the T3

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equipment” and Plaintiff asked another employee, Kevin Lavely, to help him. (Id. at ¶

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11.) Later that day, Ritter called Plaintiff into her office “and advised that she had had

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[Lavely] evaluate Plaintiff on the start up, and that Plaintiff had done ten things

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incorrectly.” (Id.) Between December 21, 2012, and January 9, 2013, Ritter also

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contacted Lavely and another employee, Brad Early, to ask about Plaintiff’s

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performance. (Id. at ¶12.)

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Plaintiff was switched to Byrd’s crew on January 16, 2013. (Id.) On or about

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February 7, 2013, Plaintiff told Ritter that he was unhappy on Byrd’s crew and Ritter told

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him to send her a “professional email with Plaintiff’s personal reasons for switching

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crews” and also remarked that “[i]t doesn’t matter what weekends [Plaintiff has] off if [he

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doesn’t] have a paycheck.” (Id. at ¶ 13.) Plaintiff made a complaint on NV Energy’s

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Integrity Hotline on February 28, 2013, and was told he would receive a response in ten

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(10) days. (Id. at ¶ 15.) After three weeks without a response, he filed another complaint

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with the Integrity Hotline regarding NV Energy’s failure to respond to his first complaint.

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(Id. at ¶ 16.)

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Plaintiff arrived ten minutes late for work on March 13, 2013, and Ritter required

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him to fill out a form so that the ten minutes could be deducted from his paycheck. (Id. at

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¶ 18.)

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Plaintiff had an incident with Byrd in which Byrd screamed at him and caused him

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to have a panic attack. (Id. at ¶ 19.) Plaintiff requested a meeting with Ritter to discuss

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the incident. (Id. at ¶ 20.) At the meeting, which occurred on or about April 3, 2013, and

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included Ritter as well as two people from human resources, Plaintiff explained his

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issues with Byrd and asked to be removed from his crew. (Id.) Ritter said “she would
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look into these matters and speak to human resources about Plaintiff.” (Id.) Later,

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Plaintiff also informed Ritter that he was on prescription medication to treat his stress

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and that he had filed a complaint with the Integrity Hotline but had not heard back. (Id.)

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Plaintiff met with two human resources representatives on April 10, 2013, for

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approximately three hours. (Id. at ¶ 22.) The next day, Plaintiff received his performance

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evaluation from Ritter and was told that he needed improvement and was being put on a

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performance plan. (Id. at ¶ 23.) The day after his performance evaluation, Ritter stopped

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an equipment test and had Plaintiff call human resources. (Id. at ¶ 24.) Ryan Lee, of

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human resources, told Plaintiff that Ritter told Lee that Plaintiff was taking Xanax at work.

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(Id.) Plaintiff told Lee that he was not taking Xanax at work and that it had been

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prescribed to help him sleep. (Id.) Lee informed Plaintiff that Lee may need a note from

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Plaintiff’s physician. (Id.)

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Based on these allegations, the Complaint asserts the following claims: (1) hostile

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work environment; (2) negligent infliction of emotional distress; (3) intentional infliction of

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emotional distress; (4) failure to follow departmental procedure; (5) failure to prevent

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workplace violence; and (6) retaliation for reporting workplace violence. (Id. at 7-11.)

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Defendants move to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. no. 6.)

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Defendants argue that resolving Plaintiff’s claims for hostile work environment, negligent

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infliction of emotional distress, intentional infliction of emotional distress and failure to

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follow departmental procedure depends on the Court’s interpretation of provisions of

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Plaintiff and NV Energy’s collective bargaining agreement (“CBA”) and therefore those

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claims are preempted by Section 301 of the Labor Management Relations Act (“LMRA”),

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29 U.S.C. § 185(a). (Dkt. no. 6 at 1-2.) Defendants also argue that Plaintiff has failed to

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state any claims upon which relief may be granted. (Id.) Plaintiff filed an opposition (dkt.

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no. 14) and Defendants filed a reply (dkt. no. 15).

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III.

DISCUSSION
A.

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Legal Standard
1. Rule 12(b)(6)

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A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which

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relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide

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“a short and plain statement of the claim showing that the pleader is entitled to relief.”

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Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The

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Rule 8 notice pleading standard requires Plaintiff to “give the defendant fair notice of

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what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555.

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(internal quotation marks and citation omitted). While Rule 8 does not require detailed

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

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recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 US 662, 678

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(2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be

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enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Thus, to survive

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a motion to dismiss, a complaint must contain sufficient factual matter to “state a claim to

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relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal citation omitted).

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In Iqbal, the Supreme Court clarified the two-step approach district courts are to

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apply when considering motions to dismiss. First, a district court must accept as true all

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well-pled factual allegations in the complaint; however, legal conclusions are not entitled

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to the assumption of truth. Iqbal, 556 U.S. at 679. Mere recitals of the elements of a

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cause of action, supported only by conclusory statements, do not suffice. Id. at 678.

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Second, a district court must consider whether the factual allegations in the complaint

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allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the

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plaintiff’s complaint alleges facts that allow a court to draw a reasonable inference that

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the defendant is liable for the alleged misconduct. Id. at 678. Where the complaint does

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not permit the court to infer more than the mere possibility of misconduct, the complaint

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has “alleged–but not shown–that the pleader is entitled to relief.” Id. at 679 (internal

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quotation marks omitted). When the claims in a complaint have not crossed the line from

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conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570.

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A complaint must contain either direct or inferential allegations concerning “all the

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material elements necessary to sustain recovery under some viable legal theory.” Id. at

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562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1989)

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(emphasis in original)).
2.

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Section 301 of the LMRA

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Section 301(a) of the LMRA provides federal jurisdiction over “[s]uits for violation

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of contracts between an employer and a labor organization.” 29 U.S.C. § 185(a).

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“Section 301 completely preempts any state causes of action based on alleged

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violations of contracts between employers and labor organizations.” Ramirez v. Fox

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Television Station, Inc., 998 F.2d 743, 747 (9th Cir. 1993) (citation omitted). Section

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301’s preemptive force is “so powerful as to displace entirely any state claim based on a

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collective bargaining agreement, . . . and any state claim whose outcome depends on

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analysis of the terms of the agreement.” Young v. Anthony's Fish Grottos, Inc., 830 F.2d

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993, 997 (9th Cir. 1987) (internal citations omitted).

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Once preempted, “any claim purportedly based on [a] . . . state law is considered,

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from its inception, a federal claim, and therefore arises under federal law.” Burnside v.

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Kiewit Pac. Corp., 491 F.3d 1053, 1059 (9th Cir. 2007) (citing Caterpillar, Inc. v.

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Williams, 482 U.S. 386, 393 (1987)). This is true even where plaintiffs have not alleged a

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breach of a collective bargaining agreement in their complaint so long as the plaintiffs'

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claim is either grounded in the provisions of the labor contract or requires interpretation

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of it. Id. (citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210 (1985)). The purpose of

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such a broad preemption is to ensure that plaintiffs are not able “to evade the

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requirements of section 301 by relabeling their contract claims as claims for tortious

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breach of contract” or some other state cause of action, and thus “elevate form over

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substance.” Lueck, 471 U.S. at 211.

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In analyzing preemption pursuant to Section 301, the Ninth Circuit follows a two-

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step inquiry. The first step is for the Court to determine whether “the asserted cause of

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action involves a right conferred upon an employee by virtue of state law” or a right that

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“exists solely as a result of the CBA.” Burnside, 491 F.3d at 1059. “If the right exists

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solely as a result of the CBA, then the claim is preempted, and [the Court’s] analysis

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ends there.” Id. If, however, the right exists independent of the CBA, then the Court must

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proceed to the second step and consider whether the right is nevertheless “substantially

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dependent on analysis of [the CBA].” Id. (citing Caterpillar, 482 U.S. at 394; Lueck, 471

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U.S. at 213). If such dependence exists then the claim is preempted, otherwise the claim

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may proceed under state law. Burnside, 491 F.3d at 1059-60.

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For the first step of the analysis, the Court considers whether “the legal character”

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of a state law claim is independent of rights established by the CBA and “not whether a

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grievance arising from precisely the same set of facts could be pursued” under the CBA.

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Id. at 1060 (internal quotation marks and citations omitted). For instance, a state law

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discrimination claim “need not be preempted merely because certain aspects of the

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collective bargaining agreement govern work assignments and discharges.” Hernandez

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v. Creative Concepts, Inc., 862 F. Supp. 2d 1073, 1089 (D. Nev. 2012) (citing Detabali v.

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St. Luke's Hosp., 482 F.3d 1199, 1203 (9th Cir. 2007)).

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For the second step of the analysis, the Court must determine whether the state

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law claim can be resolved by “looking to” the CBA rather than interpreting it. Burnside,

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491 F.3d at 1060 (citations omitted). If the Court must interpret the CBA, then the claim

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is preempted, but if the claim can be resolved by only “looking to” the CBA, then it is not

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preempted. Id. Referencing the CBA to “discern that none of its terms is reasonably in

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dispute” is not interpretation and does not warrant preemption. Id. (citation omitted).

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“[E]ven if dispute resolution pursuant to [the CBA], on the one hand, and state law, on

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the other, would require addressing precisely the same set of facts, as long as the state-

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law claim can be resolved without interpreting the agreement itself, the claim is

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‘independent’ of the agreement for § 301 pre-emption purposes.” Lingle v. Norge Div. of

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Magic Chef, Inc., 486 U.S. 399, 409-10 (1988).

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3.

Analysis

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The Complaint is dismissed as it fails to satisfy the pleading standards set out by

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Rule 8. The Rule 8(a) notice pleading standard requires Plaintiff to “give the defendant

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fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550

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U.S. at 555 (internal quotation marks and citation omitted). The Court cannot identify the

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factual basis for Plaintiff’s emotional distress claims, and cannot identify the legal theory

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at issue in Plaintiff’s other claims because the Complaint is vague and unsatisfactory.

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The Court cannot conduct a preemption analysis as to Plaintiff’s claims without first

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understanding the legal theory and facts they are based on. Preemption analysis is thus

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premature at this stage.

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a.

Plaintiff’s Emotion Distress Claims

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Plaintiff’s second and third claims for relief assert negligent infliction of emotional

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distress and intentional infliction of emotional distress, respectively. (Dkt. no. 1-1, Exh. 1

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at 8-9.) To recover for negligent infliction of emotional distress under Nevada law, a

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plaintiff must establish that a negligent act was committed. See Shoen v. Amerco, Inc.,

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896 P.2d 489, 477 (Nev. 1995). To recover for intentional infliction of emotional distress,

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a plaintiff must establish that extreme and outrageous conduct caused plaintiff to suffer

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emotional distress. See Nelson v. City of Las Vegas, 665 P.2d 1141, 1145 (Nev. 1983).

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The Complaint, however, does not allege Defendants were negligent or engaged in

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extreme and outrageous conduct.

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Plaintiff’s claim for negligent infliction of emotional distress is insufficiently plead

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because Plaintiff fails to identify a duty of care owed to Plaintiff that was breached by

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Defendants conduct. See Switzer v. Rivera, 174 F. Supp. 2d 1097, 1009 (D. Nev. 2001).

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With regard to Plaintiff’s claim for intentional infliction of emotional distress, the

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Complaint does not allege extreme and outrageous conduct. While the Complaint states

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that “[t]he acts of Defendants herein described have caused Plaintiff severe emotional
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distress[,]” it merely refers to all of the Complaint’s factual allegations without identifying

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the alleged conduct that is extreme and outrageous. (Dkt. no. 1-1, Exh. 1 ¶ 39.) The

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Complaint details Plaintiff’s interactions with Ritter and his attempts to transfer out of

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Byrd’s crew but gives no indication as to what conduct is alleged to be “beyond all

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possible bounds of decency . . . atrocious and utterly intolerable.” See Hirschhorn v.

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Sizzler Rests. Int’l, Inc., 913 F. Supp. 1393, 1401 (D. Nev. 1995).

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Defendants argue that these emotional distress claims are preempted because

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they depend on whether the asserted outrageous or negligent conduct violated the terms

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of the CBA. (Dkt. no. 6 at 11.) As the Complaint fails to allege negligent, extreme or

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outrageous conduct, however, the Court cannot determine at this stage whether

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interpretation of the CBA will be required in resolving Plaintiff’s emotional distress claims.

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The Complaint fails to sufficiently allege “all the material elements necessary to sustain

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recovery” as to Plaintiff’s emotional distress claims and they are therefore dismissed.

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See Twombly, 550 U.S. at 562.

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b.

Plaintiff’s Remaining Claims

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As to Plaintiff’s first claim for relief, the Court is not aware of any cause of action

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under state law for hostile work environment. (Dkt. no. 1-1, Exh. 1 at 7.) While a plaintiff

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may allege a hostile work environment in asserting claims of discrimination or sexual

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harassment, there is no clearly established right in Nevada to be free from a generally

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hostile workplace. See, e.g., Chavez v. Sievers, 43 P.3d 1022, 1024 (Nev. 2002)

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(plaintiff alleges workplace environment hostile to Hispanics in bringing discrimination

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claims under state and federal law). The Complaint also refers to “retaliation” but the

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Court is not aware of a right to be free from retaliation generally. (Dkt. no. 1-1, Exh. 1 ¶

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29.) NRS § 613.310 et seq. and Title VII address retaliation and hostile work

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environment in certain specific contexts, but the Complaint does not allege that Plaintiff

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is part of a protected class, protected status or a victim of sexual harassment, and does

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not identify any state or federal statute as a basis for Plaintiff’s claim. It is thus difficult for

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the Court to discern Plaintiff’s legal theory from the language of the Complaint.
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The inadequacy of Plaintiff’s hostile work environment claim is reflected in the fact

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that the parties appear to disagree over the nature of it. Defendants read the claim as

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asserting a violation under NRS § 613.310 et seq. (Dkt. no. 6 at 14-15.) Plaintiff appears

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to argue in his opposition, however, that his claim for hostile work environment is based

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on Defendants’ violation of NV Energy’s internal policies. (Dkt. no. 14 at 10.)

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As to Plaintiff’s fourth claim for relief, the Court is not aware of any cause of action

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under state law for failure to follow departmental procedure and Plaintiff does not provide

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any state or federal statutory basis for this claim. Defendants read Plaintiff’s fourth claim

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for relief as a tortious discharge claim, because the Complaint mentions that Defendants’

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behavior “constituted a public policy violation by refusing to address matters brought to

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their attention by Plaintiff in a timely manner.” (Dkt. no. 6 at 18–19; dkt. no. 1-1, Exh. 1 ¶

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46.) However, the Complaint does not allege that Plaintiff was terminated, and under

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Nevada law “[a]n employer commits a tortious discharge by terminating an employee for

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reasons which violate public policy.” D'Angelo v. Gardner, 819 P.2d 206, 212 (Nev.

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1991) (emphasis added). Plaintiff’s intended legal basis is therefore unclear.

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As to Plaintiff’s fifth claim for relief, the Court is not aware of any cause of action

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under state law for failure to prevent workplace violence and Plaintiff does not provide

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any statutory basis for the claim. Defendants cannot identify the legal basis for this claim

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but interpret it as a restatement of Plaintiff’s first claim for relief ― hostile work

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environment. (Dkt. no. 6.) Indeed Plaintiff appears to agree, arguing in his opposition

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that his claim for failure to prevent workplace violence, like Plaintiff’s hostile work

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environment claim, is based on Defendants’ violation of NV Energy’s internal policies.

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(Dkt. no. 14 at 10.) Similar to Plaintiff’s first claim for relief, the Court, and Defendants,

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cannot discern the legal basis for Plaintiff’s failure to prevent workplace violence claim.

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Lastly, as to Plaintiff’s sixth claim for relief, the Court is not aware of any cause of

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action under Nevada law for general retaliation. While NRS § 613.340 provides a legal

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basis for a retaliation claim if an employee opposes an unlawful employment practice as

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defined by NRS § 613.310 to NRS § 613.435, the Complaint makes no such allegations.
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As previously discussed, Plaintiff does not identify a statutory basis for any of his claims

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or make any allegations pursuant to Nevada’s equal opportunities statutes. The Court

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cannot identify a legal basis for Plaintiff’s retaliation claim.

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Plaintiff has failed to provide “a short and plain statement of the claim showing

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that the pleader is entitled to relief” in accordance with Rule 8 and Plaintiff’s claims for

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hostile work environment, failure to follow departmental procedure, failure to prevent

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workplace violence and retaliation are dismissed.

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c.

Leave to Amend

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Plaintiff asks for leave to amend. (Dkt. no. 14 at 12-13.) After the period

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for leave to amend as of right has expired (as it has here), a party must either obtain the

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other party's consent or seek leave of court to amend a pleading. Fed. R. Civ. P.

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15(a)(2). The court should give leave to amend freely when justice requires, though

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leave need not be granted where amendment: “(1) prejudices the opposing party; (2) is

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sought in bad faith; (3) produces an undue delay in litigation; or (4) is

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futile.” Amerisource Bergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir.

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2006) (citation omitted).

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Defendants argue that leave to amend should not be granted because

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amendment would be futile. (Dkt. no. 15 at 13-14.) The Court disagrees. While

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Defendants argue that Plaintiff’s claims are preempted, the Court cannot conduct a

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preemption analysis at this stage due to the deficiencies in the Complaint. Plaintiff has

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not yet had an opportunity to file an amended complaint, and has not demonstrated bad

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faith, undue delay or a dilatory motive. In the interests of allowing Plaintiff to clarify his

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claims and the Court to proceed with a preemption analysis, Plaintiff will be provided with

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an opportunity to cure the deficiencies in the Complaint. There is no prejudice to

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Defendants because, if Plaintiff is able to satisfy Rule 8’s pleading standards,

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Defendants may again move to dismiss on preemption grounds. If Plaintiff again fails to

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state a legal basis for his claims, this action will be dismissed with prejudice. Good cause

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appearing, Plaintiff is given leave to amend.
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IV.

CONCLUSION

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It is hereby ordered that Defendants’ Motion to Dismiss (dkt. no. 6) is granted.

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The Complaint is dismissed without prejudice. Plaintiff may file an amended complaint

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within fifteen (15) days. Failure to file an amended complaint will result in dismissal with

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prejudice.

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DATED THIS 9th day of September 2014.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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