United States District Court, D. Nevada
For Gergorio Bravo, Plaintiff: Kyle R. Tatum, LEAD ATTORNEY, Kang & Associates, PLLC, Las Vegas, NV; Patrick W Kang, Kang & Associates, Las Vegas, NV.
For Caesars Entertainment Corporation, doing business as Caesar's Palace, Defendant: Patrick H. Hicks, LEAD ATTORNEY, Littler Mendelson, PC, Las Vegas, NV; Rachel Silverstein, LEAD ATTORNEY, Littler Mendelson, Las Vegas, NV.
James C. Mahan, UNITED STATES DISTRICT JUDGE.
Presently before the court is defendant Caesars Entertainment Corporation's (hereinafter " defendant") motion to dismiss plaintiff's first, third, fourth, fifth, sixth, and eighth causes of action. (Doc. # 10). Plaintiff Gregorio Bravo (hereinafter " plaintiff") filed a response, (doc. # 11), and defendant filed a reply, (doc. # 12).
On or around July 5, 2005, plaintiff began working for defendant as a utility porter. Plaintiff is a Hispanic man of Mexican national origin. At the time relevant to the complaint, he was sixty-two years old. (Doc. # 1).
Plaintiff contends that beginning in 2012, he was subjected to hostile and disparate treatment in the workplace. Plaintiff alleges that his supervisor, Ms. Hava Kukie, subjected him to unwarranted discipline, verbal harassment, hostile work environment, and disparate treatment due to his age and national origin. Kukie is of Bosnian national origin. (Doc. # 1).
Plaintiff requested meetings and filed complaints against Kukie for yelling, disrespectful comments, and swearing. Plaintiff states that he was singled out and harassed for improper cleaning of air conditioning units. Plaintiff reported this behavior to the manager, Jesus Montano, who reviewed plaintiff's work and found it satisfactory.
On March 12, 2012, plaintiff was disciplined for failure to properly clean a room. Plaintiff claims that his work was more closely monitored than that of other employees. Plaintiff made two or more additional meeting requests, one of which plaintiff contends was inappropriately handled and marked as resolved.
Plaintiff states that in September 2012, Kukie swore at him in front of coworkers, telling him that " every fucking door was dirty." (Doc. # 1). Due to failed meeting resolutions, plaintiff filed union grievances in 2012 and 2013. In January 2013, plaintiff received a written discipline for being disrespectful to Kukie. The incident was marked as a final warning.
Plaintiff then spoke to director of housekeeping, Sara Smith, and expressed his desire to speak with the vice president of hotel operations regarding the abuse he suffered in the workplace. On March 28, 2013, plaintiff was suspended pending investigation for " possible violation of Caesars Palace policies and procedures." (Doc. # 1).
Plaintiff's employment with defendant was eventually terminated. (Doc. # 1). Plaintiff then filed the instant action alleging discrimination and retaliation, among other claims. (Doc. # 1). Defendant then filed the instant motion. (Doc. # 10).
II. Legal Standard
i. 12(b)(1) lack of subject matter jurisdiction
A court may dismiss a plaintiff's complaint for lack of subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Federal Rule of Civil Procedure 12(b)(1) permits a party to assert this defense by motion. Id. When presented as a factual challenge, a rule 12(b)(1) motion can be supported by affidavits or other evidence outside of the pleadings. United States v. LSL Biotechs., 379 F.3d 672, 700 n.14 (9th Cir. 2004) (citing St. Clair v. City of Chicago, 880 F.2d 199, 201 (9th Cir. 1989)).
" A plaintiff suing in federal court must show in his pleading, affirmatively and distinctly, the existence of whatever is essential to federal jurisdiction, and, if he does not do so, the court, on having the defect called to its attention or on discovering the same, must dismiss the case." Tosco Corp. v. Communities for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001).
ii. 12(b)(6) failure to state a claim
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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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 ...