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Burch v. Casino

United States District Court, D. Nevada

September 9, 2014

Adrienne A. Burch, Plaintiff,
Bellagio Hotel and Casino, Defendant.


JENNIFER A. DORSEY, District Judge.

Plaintiff Adrienne Burch alleges that her employer, the Bellagio Hotel and Casino, has discriminated against her in violation of the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964. Doc. 1 at 3-4.[1] Bellagio moves to dismiss Burch's claims under Federal Rule of Civil Procedure 12(b)(6), arguing that she failed to timely bring her federal lawsuit after receiving a Notice of Right to Sue letter. Doc. 8. Alternatively, Bellagio contends that Burch's allegations are inadequately pled under Rule 12(e) and that she should be required to provide a more definite statement of her Equal Pay Act claim. I find that Burch has in fact failed to state a claim for which relief can be granted under either the Equal Pay Act or Title VII, and all of her claims must be dismissed. However, I permit Burch leave to amend her complaint to more specifically allege her Equal Pay Act claim, as well as any properly exhausted Title VII claim other than one based on her now-expired April 2013 EEOC Charge, within the next 20 days.


Burch alleges that during her now-terminated employment at the Bellagio, she was subjected to a pattern of race- and gender-based harassment, which included being required to perform job duties beneath her job classification, suspensions from work shifts, overscrutinization of her work performance, and being subjected to surveillance while on the job. Doc. 1 at 1-2. She allegedly complained about her treatment to Bellagio management in August 2011 and filed a complaint again in December 2011. Id. at 3. In April 2012, she filed a complaint with the Equal Employment Opportunity Commission. Id. She alleges that Bellagio unlawfully retaliated against her after she complained of Equal Pay Act violations (Count 1), as well as three "Title VII" claims: first for race and sex discrimination (Count 2), for "harassment" (Count 3), and "intentional breach of contract" (Count 4). Id. at 3-4.

Bellagio moves to dismiss Burch's Title VII claims as untimely, and her Equal Pay Act claim because it is "unintelligible and does not set forth sufficient facts to demonstrate a plausible claim for relief." Doc. 8 at 2. Burch opposes the motion and countermoves to strike Bellagio's motion as untimely. Docs. 16, 17. I grant Bellagio's motion to dismiss, permit Burch an opportunity to amend her complaint if she can cure the deficiencies of her pleading, and deny her motion to strike.


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."[3] A district court may dismiss a complaint brought under Rule 8(a) for failing to state a claim upon which relief can be granted.[4]

"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."[5] "[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."[6] The Court is also "not bound to accept as true a legal conclusion couched as a factual allegation."[7] 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."[8] This requires a plaintiff to state "enough facts to raise a reasonable expectation that discovery will reveal evidence" of the allegations charged.[9]

A. Title VII Claims - Administrative Exhaustion

Burch received a Notice of Right to Sue from the EEOC on September 13, 2013, which required Burch to file her complaint no later than mid-December 2013. Doc. 8 at 4.[10] Bellagio argues that because Burch waited over six months-until July 11, 2014-before bringing suit, her complaint must be dismissed. Doc. 8 at 5.[11] Burch does not contest that she received this Notice or indicate that her Title VII claims were subject to a different EEOC administrative proceeding than the one Bellagio referenced; instead, she attempts to explain the tardiness of her filing by citing the Lily Ledbetter Fair Pay Act of 2009, under which a claim for gender-based pay discrimination expires 180 days after receipt of the last discriminatory paycheck. Doc. 16 at 2.

Title VII prohibits employers from discrimination against individuals based, inter alia, their sex and race[12] and further prohibits employers from retaliating against an individual who seeks to enforce her rights under these statutes.[13] Exhaustion of administrative remedies in a Title VII case is a condition precedent to filing suit in federal court.[14] Under Title VII, to exhaust administrative remedies, a plaintiff must typically file a Charge of Discrimination within 180 days of the claimed conduct, receive a Notice of Right to Sue letter from the EEOC, and file suit within 90 days of receipt of that notice.[15] In general, the Ninth Circuit strictly construes the 90-day filing period; late-filed claims are typically barred.[16] Of course, these administrative exhaustion requirements are subject to equitable defenses such as waiver, estoppel, and tolling.[17] To determine whether equitable remedies apply, courts look to the relative fault of the parties.[18]

As Bellagio points out, Burch does not deny that her claims are untimely and subject to dismissal. Burch instead contends that Bellagio's motion to dismiss should be denied-and stricken-because it's late. Docs. 16, 17.[19] Burch delivered the Summons to Bellagio by certified mail on July 15, 2014. Doc. 6 at 3. Under Rules 12(a)(1)(A)(i) and 12(b), Bellagio had 21 days to file its motion to dismiss.[20] But under Rule 6(d), that 21-day period was extended by 3 days because service was made by mail. ("When a party may or must act within a specified time after service and service is made under Rule... 5(b)(2)(C)..., 3 days are added after the period would otherwise expire under Rule 6(a)"). Thus, Bellagio had until August 8, 2014, to move to dismiss Burch's claims. It filed its motion to dismiss that very day: Bellagio's motion was thus timely; Burch's "default" argument is unavailing.

Similarly, Burch's argument that the Lily Ledbetter Act saves her claims overlooks the intended scope of that legislation, which is limited to discriminatory-compensation claims:

Time for filing charges.... For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this subchapter, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time ...

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