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Hulery v. NV Energy, Inc.

United States District Court, D. Nevada

September 9, 2014

BRAE HULERY, Plaintiff,
NV ENERGY, INC. and CATINA RITTER, an employee of NV Energy, et al, Defendants.


MIRANDA M. DU, District Judge.


Before the Court is Defendants NV Energy, Inc. ("NV Energy") and Catina Ritter's Motion to Dismiss ("Motion"). (Dkt. no. 6.) For the reasons set out below, the Motion is granted.


Plaintiff Brae Hulery filed the Complaint in district court in the State of Nevada, Washoe County, and Defendants removed to this Court on August 23, 2013. (Dkt. no. 1.)

The Complaint alleges the following. Plaintiff was an employee of Defendant NV Energy. (Dkt. no. 1-1, Ex. 1 at ¶ 6.) Defendant Ritter became a manager for Plaintiff's crew in October, 2012. ( Id. at ¶ 7.) Plaintiff's crew was led by Gary Bailey. ( Id. ) Ritter instituted a crew change switching Plaintiff to Andy Byrd's crew. ( Id. at ¶ 7-8.) On or about December 4, 2012, Plaintiff complained to Ritter that Plaintiff had been granted a request to be removed from Byrd's crew in the past because of Byrd's "inappropriate[] screaming, yelling, and exhibiting inappropriate behavior...." ( Id. at ¶ 9.) Plaintiff thus asked to remain on Bailey's crew instead. ( Id. ) Ritter "kept Plaintiff on Byrd's crew and instructed Plaintiff as a solution for Plaintiff to stay away from Byrd." ( Id. ) Bailey spoke to Ritter and asked that Plaintiff stay on his crew but Ritter denied his request, advising him that she was trying to "balance the crews." ( Id. at ¶10.)

On or about December 21, 2012, Plaintiff was called on "to start up the T3 equipment" and Plaintiff asked another employee, Kevin Lavely, to help him. ( Id. at ¶ 11.) Later that day, Ritter called Plaintiff into her office "and advised that she had had [Lavely] evaluate Plaintiff on the start up, and that Plaintiff had done ten things incorrectly." ( Id. ) Between December 21, 2012, and January 9, 2013, Ritter also contacted Lavely and another employee, Brad Early, to ask about Plaintiff's performance. ( Id. at ¶12.)

Plaintiff was switched to Byrd's crew on January 16, 2013. ( Id. ) On or about February 7, 2013, Plaintiff told Ritter that he was unhappy on Byrd's crew and Ritter told him to send her a "professional email with Plaintiff's personal reasons for switching crews" and also remarked that "[i]t doesn't matter what weekends [Plaintiff has] off if [he doesn't] have a paycheck." ( Id. at ¶ 13.) Plaintiff made a complaint on NV Energy's Integrity Hotline on February 28, 2013, and was told he would receive a response in ten (10) days. ( Id. at ¶ 15.) After three weeks without a response, he filed another complaint with the Integrity Hotline regarding NV Energy's failure to respond to his first complaint. ( Id. at ¶ 16.)

Plaintiff arrived ten minutes late for work on March 13, 2013, and Ritter required him to fill out a form so that the ten minutes could be deducted from his paycheck. ( Id. at ¶ 18.)

Plaintiff had an incident with Byrd in which Byrd screamed at him and caused him to have a panic attack. ( Id. at ¶ 19.) Plaintiff requested a meeting with Ritter to discuss the incident. ( Id. at ¶ 20.) At the meeting, which occurred on or about April 3, 2013, and included Ritter as well as two people from human resources, Plaintiff explained his issues with Byrd and asked to be removed from his crew. ( Id. ) Ritter said "she would look into these matters and speak to human resources about Plaintiff." ( Id. ) Later, Plaintiff also informed Ritter that he was on prescription medication to treat his stress and that he had filed a complaint with the Integrity Hotline but had not heard back. ( Id. )

Plaintiff met with two human resources representatives on April 10, 2013, for approximately three hours. ( Id. at ¶ 22.) The next day, Plaintiff received his performance evaluation from Ritter and was told that he needed improvement and was being put on a performance plan. ( Id. at ¶ 23.) The day after his performance evaluation, Ritter stopped an equipment test and had Plaintiff call human resources. ( Id. at ¶ 24.) Ryan Lee, of human resources, told Plaintiff that Ritter told Lee that Plaintiff was taking Xanax at work. ( Id. ) Plaintiff told Lee that he was not taking Xanax at work and that it had been prescribed to help him sleep. ( Id. ) Lee informed Plaintiff that Lee may need a note from Plaintiff's physician. ( Id. )

Based on these allegations, the Complaint asserts the following claims: (1) hostile work environment; (2) negligent infliction of emotional distress; (3) intentional infliction of emotional distress; (4) failure to follow departmental procedure; (5) failure to prevent workplace violence; and (6) retaliation for reporting workplace violence. ( Id. at 7-11.)

Defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. no. 6.) Defendants argue that resolving Plaintiff's claims for hostile work environment, negligent infliction of emotional distress, intentional infliction of emotional distress and failure to follow departmental procedure depends on the Court's interpretation of provisions of Plaintiff and NV Energy's collective bargaining agreement ("CBA") and therefore those claims are preempted by Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a). (Dkt. no. 6 at 1-2.) Defendants also argue that Plaintiff has ...

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