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Martinez v. Victoria Partners

United States District Court, D. Nevada

March 27, 2014

Pablo Martinez, et al., Plaintiffs,
Victoria Partners, et al., Defendants.


JENNIFER A. DORSEY, District Judge.

This employment dispute involves four middle-aged male Las Vegas bartenders-Pablo Martinez, Tyrone Armstrong, Cary Ven Biezen, and Daniel Atkinson-who work at the Monte Carlo hotel and claim their employers passed them over in favor of younger female bartenders when hiring for two new hotel bars.[1] See Doc. 1. They allege gender discrimination under Title VII, 42 U.S.C. § 2000e et seq., age discrimination under the ADEA, 29 U.S.C. § 621, and retaliation under both Title VII and the ADEA. Doc. 1. Victoria Partners, owner of the Monte Carlo, moves to dismiss the action in part on the limited grounds that Plaintiffs Armstrong, Van Biezen, and Atkinson failed to exhaust some of their administrative remedies. Doc. 19. Based on the limited record before it on the motion to dismiss, and finding the motion appropriate for disposition without oral argument, the Court grants the motion in part and denies it in part.


Defendant Victoria Partners does business as the Monte Carlo Resort and Casino in Las Vegas, Nevada. Doc. 1 at 2. Since at least 2007, Monte Carlo has contracted with the Light Group to run two restaurants inside the Monte Carlo: Diablo's Cantina, LLC and MC Steak, LLC. Id. at 2. All four plaintiffs, who were employed as bartenders in other Monte Carlo bars, applied for bartending positions at one or both of these new establishments and allege that females under the age of forty were selected instead-even though some of the new hires had no prior experience as bartenders. Id. at 5.

Martinez, Armstrong, and Van Biezen filed administrative charges with the EEOC.[3] Martinez's first charge, filed on November 1, 2007, claimed that he and "other males" were not given an opportunity to prepare for their interviews at Diablo's, although younger female candidates were given time to prepare. Doc. 19-10 at 2. He alleged age and sex discrimination, as well as retaliation. Id. at 2-3. The EEOC issued Martinez a Determination Letter on September 10, 2010, which stated in part that "[e]xamination of the evidence... reveals reasonable cause to believe that a class of individuals was denied hire because of their age... and their sex." Doc. 19-11 at 2.[4] The commission issued Martinez a right to sue letter on June 6, 2011. Doc. 19-12 at 2.[5] Martinez filed another charge on September 29, 2008, alleging age discrimination. Doc. 19-17 at 2. The EEOC did not issue a Determination Letter, but gave Martinez a Notice of Right to Sue on August 31, 2010. Doc. 19-18 at 2. The EEOC subsequently reconsidered this decision and issued a Determination Letter stating that reasonable cause existed to find that age discrimination had occurred with respect to the "bartender positions." Doc. 19-20 at 2.

Martinez filed several other EEOC charges. The first was a claim for retaliation on May 22, 2008, based on his filing of the November 1, 2007, charge. Doc. 19-13 at 2. Martinez amended this charge on June 12, 2008. Doc. 19-14 at 2. The EEOC issued another Determination Letter in which it stated that reasonable cause indicated that unlawful retaliation against Martinez had occurred. Doc. 19-15 at 2-3. Again, the EEOC issued a Notice of Suit Right to Sue on June 6, 2011. Doc. 19-16 at 2. Martinez filed another retaliation charge on September 8, 2011, for which no evidence of subsequent administrative actions have been submitted. Doc. 19-23 at 2. Finally, Martinez filed an unperfected charge alleging age and national origin discrimination, as well as retaliation, on October 6, 2010. Doc. 19-21 at 2. The EEOC issued Martinez a right to sue letter on November 29, 2010, in connection with this charge. Doc. 19-22.

Armstrong brought two charges of his own. The first was filed on May 22, 2008, and alleged race and age discrimination. Doc. 19-5 at 2. The EEOC issued a Determination Letter to Armstrong on September 10, 2010, in which it found reasonable cause to believe that he was subject to race and age discrimination. Doc. 19-6 at 1-3. However, as the EEOC failed to reconcile the charge, it issued Armstrong a Notice of Right to Sue on June 6, 2011. Doc. 19-7 at 2. Armstrong brought his second charge on May 9, 2011, now alleging race, age, and disability discrimination, as well as retaliation. Doc. 19-8 at 2-3. Armstrong was issued a Notice of Right to Sue letter on May 16, 2012, for this charge. Doc. 19-9.

Van Biezen brought his single charge on September 12, 2011, alleging retaliation both on his own behalf as well as similarly situated individuals. Doc. 19-3 at 2. He also claimed to have "filed a charge of discrimination with [the] EEOC against Monte Carlo and Light group with other employees." Id. The EEOC issued Van Biezen a Notice of Right to Sue letter, and Defendants filed it on November 19, 2012. Doc. 32 at 1, 5.

Plaintiffs' Complaint, filed on March 26, 2012, contends broadly that "Plaintiffs complained and objected to the denial of employment and alleged discrimination on the basis of gender (male) and age, both internally with Defendants' Human Resources departments and also filed charges of employment discrimination with the EEOC. Since making said complaints with Defendants and filing charges with the EEOC, Plaintiffs have been subject to retaliatory harassment, including being subjected to written reprimands and threatened with suspension and termination." Doc. 1 at 5. It also alleges that "On or about November 1, 2007, and on subsequent dates, Plaintiffs filed charges of employment discrimination" for gender and age discrimination, as well as retaliation. Doc. 1 at 4. Finally, it alleges that on September 10, 2010, the EEOC issued a Letter of Determination finding that "Defendants" were subject to unlawful sex and age discrimination, and were unlawfully retaliated against for objecting to these practices. See id.

Victoria Partners challenges some of the Plaintiffs' exhaustion of their administrative remedies. It argues that Atkinson cannot "piggyback" on any retaliation claim; Armstrong's charges indicated an intent not to bring a charge for sex discrimination; and Van Biezen either failed to exhaust his claims, or at least affirmatively limited them to retaliation only.[6]


Federal Rule of Civil Procedure 8(a) governs the standard for pleadings in a federal cause of action and provides, "[a] pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court's jurisdiction....; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought."[7] A district court may dismiss a complaint brought under Rule 8(a) for failing to state a claim upon which relief can be granted.[8]

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face."[9] "[A] plaintiff's obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level."[10] The Court is also "not bound to accept as true a legal conclusion couched as a factual allegation."[11] To state a "plausible" claim for relief, the plaintiff must "plead[] factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged."[12] This requires a plaintiff to state "enough facts to raise a reasonable expectation that discovery will reveal evidence" of the allegations charged.[13]

A. Van Biezen's Unexhausted Charge of Discrimination

Victoria Partners originally moved to dismiss Van Biezen's retaliation claim on the grounds that, at the time suit was filed, he had a charge pending with the EEOC and was obligated to exhaust his administrative remedies prior to filing suit. Doc. 19 at 1-2. After Victoria Partners filed its motion, on September 4, 2012, the EEOC issued Van Biezen a Notice of Right to Sue letter, which Defendants filed into the docket on November 19, 2012. Doc. 32 at 1, 5. To the degree Victoria Partners' motion seeks dismissal on the basis that Van Biezen's EEOC charge remained unexhausted, the motion is denied as moot.

B. Application of the "Piggyback" Rule

Victoria Partners' Motion hinges on various administrative-exhaustion arguments. See Doc. 19. All involve application of the single-filer or "piggyback" rule, "an exception to the rule that a timely administrative charge is a ...

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