United States District Court, D. Nevada
JAMES C. MAHAN, District Judge.
Presently before the court is a motion to dismiss filed by defendant Cove Electric of Nevada, Inc. (Doc. #6). Plaintiff Czeslaw Szyszka filed a response in opposition (doc. #8), and defendant filed a reply (doc. #13).
In this case, plaintiff was employed by defendant as an electrician for several years before he was allegedly "constructively terminated." (Doc. #8 at p. 3-5). Plaintiff alleges that he was harassed and discriminated against because of his age, until he suffered an on-the-job injury and was thereafter no longer given work shifts by defendant. (Doc. #8 at p. 3-5).
Plaintiff filed a claim with the EEOC in June of 2013, and was then issued a right-to-sue letter on January 16, 2014. (Doc. #1 at p. 20).
Plaintiff has filed a complaint alleging several violations: (1) discrimination and harassment in violation of the Age Discrimination in Employment Act (ADEA); (2) discrimination in violation of Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act (ADA); (3) retaliation in violation of the ADEA, Title VII, and the ADA; (4) discrimination and retaliation in violation of NRS 613.330, et. al.; (5) intentional infliction of emotional distress; (6) retaliation in violation of the Nevada Industrial Insurance Act; and (7) negligent hiring, supervision, and/or training of employees. (Doc. #1).
Defendant's motion seeks dismissal of five of plaintiff's causes of action, arguing that some are time barred and others lack sufficient factual allegations to state a claim upon which relief can be granted. (Doc. #6).
II. Legal Standard
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) (citation omitted). "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 (citation omitted).
In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the 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. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. Second, the 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 the 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. (internal quotations omitted). When the allegations in a complaint have not crossed the line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570.
A. Discrimination and Harassment in Violation of the ADEA
Defendant seeks to dismiss plaintiff's first claim for two reasons: (1) the claim is allegedly untimely (doc. #6 at p. 4); and (2) defendant claims it had insufficient employees to be governed by the ADEA and so the court does not have subject matter jurisdiction over the ...