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Hettinger v. Fipps

United States District Court, D. Nevada

May 5, 2014

TRAVIS HETTINGER, Plaintiff,
v.
MICHAEL FIPPS, et al., Defendants.

ORDER (DEFS § MOTION TO DISMISS - DKT. NO. 4)

MIRANDA M. DU, District Judge.

I. SUMMARY

Before the Court is Defendants Michael Fipps, Jeromie Sorhouet, and Thor Dyson's Motion to Dismiss or in the Alternative Motion for Summary Judgment. (Dkt. no. 4.) For the reasons set forth below, the Motion to Dismiss is granted.

II. BACKGROUND

Plaintiff Travis Hettinger alleges the following skeletal facts. ( See dkt. no. 1.) Plaintiff Travis Hettinger was employed by the Nevada Department of Transportation ("NDOT") for approximately fifteen (15) years. Beginning on September 22, 2009, Plaintiff was employed as a Highway Maintenance Worker III by NDOT. On December 27, 2011, Plaintiff's driver's license expired. Plaintiff renewed his license on January 12, 2012. Plaintiff claims that he told his supervisor about the lapse, without identifying which of the supervisors named in the complaint (Jeromie Sorhouet or Thor Dyson) he told. Plaintiff further fails to identify the date on which he informed his supervisor, but given that he claims to have not realized the license was expired before January 11, 2012, it could not have been before that date. Allegedly his supervisor told Plaintiff it was not a problem. On April 17, 2012, Plaintiff received a Specificity of Charges (NPD-41) from Highway Maintenance Manager Michael Fipps recommending that Plaintiff be terminated for not having a valid driver's license while operating state vehicles or equipment. Plaintiff was terminated on May 7, 2012.

Plaintiff admits that having a commercial driver's license is an essential function of his job as a Highway Maintenance Worker III. Plaintiff alleges, however, that he was terminated in retaliation for acting as a witness in an investigation of his supervisor Jeromie Sorhouet for alleged misappropriation of state property. While Plaintiff does not provide the timeline for this investigation, he does assert that Sorhouet learned that Plaintiff participated as a witness before Plaintiff was terminated.

Plaintiff failed to describe the administrative process that preceded this case, which Defendants outline in their Motion. ( See dkt. no. 4 at 1-4.) Defendants state that after Plaintiff's receipt of the NPD-41, NDOT reviewed the charges, conducted a pre-disciplinary hearing, concluded that Plaintiff had operated the equipment without a valid driver's license, and terminated Plaintiff. Following his termination, Plaintiff filed an appeal with the Nevada Division of Human Resource Management ("DHRM") pursuant to NRS 486.390. Both Plaintiff and NDOT were represented by counsel at a hearing on August 28, 2012. The Hearing Officer issued an administrative decision on August 31, 2012, affirming NDOT's termination of Plaintiff. Following the administrative decision, Plaintiff declined to file a petition for judicial review in Nevada state court.

Plaintiff brings a single claim in the instant suit: (1) liability under 42 U.S.C. § 1983 for violation of the First Amendment of the United States Constitution. Defendants seek dismissal with prejudice or in the alternative move for summary judgment.

III. LEGAL STANDARD

A. Motion to Dismiss

A court may dismiss a plaintiff's complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A properly pled complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ( citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Factual allegations must be enough to rise above the speculative level." Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (internal citation omitted).

In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, a district court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 678. Second, a district court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff's complaint alleges facts that allow a court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678. Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has "alleged - but not shown - that the pleader is entitled to relief." Id. at 679 (internal quotation marks omitted). When the claims in a complaint have not crossed the line from conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570.

A complaint must contain either direct or inferential allegations concerning "all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 562 ( quoting Car Carriers, Inc. v. Ford Motor ...


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