Pool v. Willey et al

Filing 47

ORDER re ECF No. 35 Motion for Partial Judgment on the Pleadings, dismissing without prejudice this action as to Gail Willey, except as to the claims dismissed with prejudice as hereinafter set forth; dismissing with prejudice those portions of Counts I and II asserting a claim under § 1981 as to both Gail Willey and Gail Willey Landscaping Inc; dismissing with prejudice Plaintiff's request for damanges under § 1983 as to both Gail Willey and Gail Willey La ndscaping Inc; dismissing with prejudice Count III as to both Gail Willey and Gail Willey Landscaping Inc; dismissing without prejudice Counts V, VI, VII, IX, and that part of Count IV asserting a claim under Nev. Rev. Stat. § 608.018. Signed by Judge Howard D. McKibben on 1/4/2017. (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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ERICA POOL,

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Plaintiff,
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vs.
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GAIL WILLEY LANDSCAPING, INC.,
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GAIL WILLEY and DOES 1-50,
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Defendant.
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_________________________________ )
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And related counterclaims.
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_________________________________ )

3:16-cv-00019-HDM-VPC
ORDER

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Before the court is defendants’ motion for partial judgment on
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the pleadings (ECF No. 35).

Plaintiff has responded (ECF No. 37),

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and defendants have replied (ECF No. 39).
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Plaintiff’s complaint asserts eight causes of action: (1)
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Count I – sex and religious discrimination pursuant to Title VII,
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42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981 et seq., and Nev. Rev.
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Stat. § 613.330 et seq.; (2) Count II – retaliation pursuant to
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Title VII 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981 et seq., and
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Nev. Rev. Stat. § 613.330 et seq.; (3) Count III – tortious
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discharge; (4) Count IV – failure to pay overtime in violation of
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the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and

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Nev. Rev. Stat. § 608.018; (5) Count V – failure to pay for each

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hour worked in violation of the Fair Labor Standards Act (“FLSA”),

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29 U.S.C. § 201 et seq., and Nev. Rev. Stat. § 608.018; (6) Count

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VI – failure to provide periods for meal and rest in violation of

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Nev. Rev. Stat. § 608.019; (7) Count VII – willful failure/refusal

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to pay wages in violation of Nev. Rev. Stat. § 608.190; and (8)

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Count IX – waiting time penalties in violation of Nev. Rev. Stat. §

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608.040.

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The prayer for relief also seeks damages pursuant to 42

U.S.C. § 1983.
In his motion, the defendant Gail Willey seeks a judgment of

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dismissal, arguing that although he was named as a defendant, none

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of the claims are pleaded against him individually.

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argues that even if the claims had been pled against him

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individually, the discrimination claims in Counts I and II cannot

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stand against him because discrimination claims can be brought only

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against employers and not against individuals.

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defendants assert that plaintiff’s claims under 42 U.S.C. § 1981

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and 1983 are not tenable given the allegations of the complaint,

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that plaintiff’s claim of tortious discharge is not cognizable

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because she has an adequate statutory remedy, and that plaintiff’s

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claims under Chapter 608 of the Nevada Revised Statutes are not

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tenable because there is no private right of action to enforce the

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labor statutes therein.

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He further

In addition, both

Plaintiff does not oppose defendants’ motion, but requests

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that most of the claims be dismissed without prejudice.

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in response request that the court enter partial judgment in their

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favor on all claims set forth in the pleading.
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Defendants

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Although named as a defendant, Gail Willey has not been named

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in any cause of action in the complaint.

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is hereby DISMISSED WITHOUT PREJUDICE as to defendant Gail Willey

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except as to the claims dismissed with prejudice as hereinafter set

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forth.

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Accordingly, this action

Plaintiff’s claims of religious and sexual discrimination and

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retaliation in violation of 42 U.S.C. § 1981 are not cognizable, as

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§ 1981 applies only to claims of racial discrimination.

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v. McCrary, 427 U.S. 160, 167 (1976).

See Runyon

Therefore, those portions of

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Counts I and II asserting a claim under § 1981 are DISMISSED WITH

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PREJUDICE as to both defendant Gail Willey and defendant Gail

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Willey Landscaping, Inc.

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Section 1983 of Title 42 of the United States Code applies

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only to state actors.

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U.S. 40, 50 (1999).

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state actors and that this claim is properly dismissed.

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Accordingly, plaintiff’s request for damages under § 1983 is

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DISMISSED WITH PREJUDICE as to both defendant Gail Willey and

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defendant Gail Willey Landscaping, Inc.

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Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526
Plaintiff concedes that defendants are not

Plaintiff’s claim of tortious discharge based on her refusal

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to participate in certain religious practices is not cognizable

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because she has adequate statutory remedies for this claim.

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Chavez v. Sievers, 43 P.3d 1022, 1026 (Nev. 2002); 42 U.S.C. §

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2000e et seq.; Nev. Rev. Stat. § 613.330 et seq.

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stipulates that this claim should be dismissed.

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III is DISMISSED WITH PREJUDICE as to both defendant Gail Willey

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and defendant Gail Willey Landscaping, Inc.

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See

Plaintiff
Accordingly, Count

Finally, plaintiff agrees that there is no private right to
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enforce the claims she has brought under Chapter 608 of the Nevada

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Revised Statutes.

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part of Count IV asserting a claim under Nev. Rev. Stat. § 608.018,

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are DISMISSED WITHOUT PREJUDICE.

Accordingly, Counts V, VI, VII, and IX, and that

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IT IS SO ORDERED.

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DATED: This 4th day of January, 2017.

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____________________________
UNITED STATES DISTRICT JUDGE

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