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Ozkan v. American Casino & Entertainment Properties, LLC

United States District Court, D. Nevada

August 19, 2014

ABDULLAH OZKAN, Plaintiff(s),


JAMES C. MAHAN, District Judge.

Presently before the court is a motion to dismiss filed by defendants American Casino & Entertainment Properties, LLP ("ACEP") and Stratosphere Gaming, LLC (hereinafter "defendants") pursuant to Fed.R.Civ.P. 12(b)(6). (Doc. #13). Plaintiff Abdullah Ozkan (hereinafter "plaintiff") filed a response to the motion. (Doc. #15). Defendants filed a reply. (Doc. #17).

I. Background

On or about March 20, 2006, plaintiff was hired as a banquet supervisor by the Stratosphere Hotel ("Stratosphere"). He was later promoted to banquet manager. Plaintiff was terminated from this employment on January 26, 2012. Plaintiff alleges that he performed his job with few complaints until around May, 2011. He alleges that at this time, the catering director, Christina Rogers, created a hostile work environment by discriminating against plaintiff based on his age and national origin. Plaintiff is 51 years old and of Turkish origin.

Plaintiff claims that around May, 2011, he initiated a meeting with the vice president of food and beverage, Matt Mascali, to report Ms. Rogers's hostile behavior. Plaintiff alleges that Ms. Rogers learned of this meeting and immediately demanded to meet with plaintiff. Plaintiff alleges that Ms. Rogers then demanded plaintiff inform her about what was discussed in the meeting. Plaintiff states that he refused to disclose any facts of the confidential meeting with Mr. Mascali to Ms. Rogers.

Plaintiff alleges that following that exchange, Ms. Rogers' behavior towards plaintiff became "drastically hostile." (Doc. #6). Plaintiff claims that Ms. Rogers falsely accused plaintiff of being a thief, among other accusations. Plaintiff alleges that Ms. Rogers made discriminatory remarks about plaintiff's ethnicity, such as, "your Turkish mentality is affecting your work." Plaintiff also alleges that Ms. Rogers made discriminatory comments about plaintiff's age, for example, by stating that plaintiff was "too old and should be home taking care of his children rather than working."

Plaintiff claims that on or about November 19, 2011, plaintiff wrote an email to Ms. Rogers attempting to arrange a meeting to resolve the alleged hostile treatment and discuss Ms. Rogers's alleged discriminatory comments. Plaintiff states that Ms. Rogers did not respond.

Plaintiff alleges that he then contacted Sharon D'Ambrosio, Stratosphere's human resources director, to discuss the alleged discriminatory conduct. Plaintiff claims that Ms. D'Ambrosio was of no help and that she directed plaintiff to report the issue to Mr. Mascali. Plaintiff alleges that he tried to contact Mr. Mascali at that time and left a message, but that his call was never returned.

Plaintiff claims that around November, 2011, plaintiff and other Stratosphere employees took leftover food home after a banquet pursuant to normal practice. Plaintiff alleges that at this time, Ms. Rogers's hostile treatment continued and that she stated, "I got him, this time the Turkish guy cannot survive my department, and he has to go."

On or about May 14, 2012, plaintiff filed a formal charge of discrimination with the Nevada Equal Rights Commission ("NERC"). In the NERC filing, plaintiff alleged facts to support his claim that he had been subjected to illegal employment discrimination based on his age and national origin. NERC forwarded a copy of plaintiff's charge to the U.S. Equal Employment Opportunity Commission ("EEOC").

On or about December 23, 2013, the EEOC sent a right to sue letter to plaintiff fulfilling his obligation to initiate an administrative claim before seeking review in this court. On February 5, 2014, plaintiff filed the complaint in this case against Stratosphere Gaming, LLC, and its parent corporation, ACEP. (Doc. #1). On May 15, 2014, plaintiff filed an amended complaint. (Doc. #6). On June 20, 2014, defendants filed a motion to dismiss the amended complaint as to the retaliation claim and defendant ACEP. (Doc. #13).

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, 129 S.Ct. 1937, 1949 (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 ...

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