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Richardson v. HRHH Gaming Senior Mezz, LLC

United States District Court, D. Nevada

April 14, 2015

HRHH GAMING SENIOR MEZZ, LLC, a Delaware Limited Liability Company; BENNIE MANCINO, an individual, Defendants

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[Copyrighted Material Omitted]

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For Leon Richardson, Plaintiff: James P. Kemp, LEAD ATTORNEY, Kemp & Kemp, Las Vegas, NV.

For Bernie Mancino, Defendant: Bruce C Young, LEAD ATTORNEY, Littler Mendelson, PC, Las Vegas, NV.

For HRHH Gaming Senior Mezz. LLC, Defendant: Amy L Baker, Deverie J. Christensen, Jackson Lewis P.C., Las Vegas, NV.

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Gloria M. Navarro, Chief United States District Judge.

Presently before the Court are Defendant HRHH Gaming Senior Mezz, LLC's (" HRHH" ) Motion to Dismiss, (ECF No. 33), Plaintiff Leon Richardson's Opposition to the Motion to Dismiss, (ECF No. 37), and Defendant HRHH's Reply. (ECF No. 39). For the reasons set forth below, the Motion to Dismiss is GRANTED in part and DENIED in part.


This case concerns allegations of racial discrimination and other racially motivated misconduct that occurred during the culmination of Plaintiff's employment with Defendant HRHH. Plaintiff's employment with Defendant HRHH began in 2005, (First Am. Compl. ¶ 5, ECF No. 31), and continued until March 2012. ( Id. at ¶ 12). At that time, another HRHH employee--Defendant Bennie Mancino--informed Plaintiff that his employment was being suspended pending an investigation into a suspected policy violation. ( Id. ). Despite Plaintiff's contentions that no policy violation occurred and that the company policy Defendant Mancino accused him of violating did not even actually exist, ( Id. at ¶ ¶ 12-13), Defendant HRHH terminated Plaintiff's employment " on or about April 1, 2012." [1] ( Id. at ¶ ¶ 5, 9).

On October 18, 2013, Plaintiff--proceeding pro se --filed his original Complaint in this Court. (ECF No. 1). The original Complaint contained a Title VII racial discrimination claim, a wrongful discharge claim, and a punitive damages claim against Defendants HRHH and Mancino. (Compl. ¶ ¶ 16-27, ECF. No. 1). Defendant HRHH moved to dismiss the punitive damages and wrongful termination claims, (ECF No. 11), and after a hearing, the Court dismissed the punitive damages claim with prejudice and the wrongful discharge claim without prejudice. (Minutes of Proceedings, ECF No. 28). Plaintiff then filed a First Amended Complaint (" FAC" ) on August 20, 2014, which contained six causes of action against Defendant HRHH: (1) race and color discrimination under Title VII and Nev. Rev. Stat. Chapter 613; (2) a civil rights violation of 42 U.S.C. § 1981; (3) racial harassment under 42 U.S.C. § 1981; (4) defamation; (5) negligent hiring, training and supervision; and (6) racial harassment under 42 U.S.C. § 2000e-2.[2] ( Id. at ¶ ¶ 25-65, 74-86).

Defendant HRHH now moves under Fed.R.Civ.P. 12(b) to dismiss both tort claims in the FAC, as well as the racial harassment claim, the color discrimination claim arising under Title VII, and the claim arising under Nev. Rev. Stat. Chapter 613. (ECF No. 33).


Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6); Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on which it rests, and although a court must take all factual allegations as true, legal conclusions couched as factual allegations are insufficient. Twombly, 550 U.S. at 555. Accordingly, Rule 12(b)(6) requires " more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. " To survive

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a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 555). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This standard " asks for more than a sheer possibility that a defendant has acted unlawfully." Id. Nevertheless, the Supreme Court has instructed " federal courts to liberally construe the 'inartful pleading' of pro se litigants." Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (quoting Boag v. MacDougall, 454 U.S. 364, 365, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982) (per curiam)).


According to Defendant HRHH, Plaintiff's first cause of action, which includes multiple discrimination claims, should be partially dismissed and " limited to race discrimination under Title VII." (Mot. to Dism. 3:2, ECF No. 33). Specifically, Defendant HRHH argues that the Court should dismiss the Nev. Rev. Stat. Chapter 613 discrimination claim as untimely, ( Id. at 10:3-12:21), and that the color discrimination claim and the 42 U.S.C. § 2000e-2 racial harassment claim should be dismissed because Plaintiff failed to exhaust his administrative remedies. ( Id. at 7:21-8-5, 18:14-19:12). Defendant HRHH also argues that Plaintiff's defamation and negligent hiring, training, and supervision (" NHTS" ) claims should be dismissed, asserting that these claims are barred by Nevada's two-year statute of limitations and do not relate back to the date the original Complaint was filed.[3] ( Id. at 12:22-15:20). Defendant HRHH advances a number of alternative arguments as to why the defamation and NHTS claims should be dismissed, and the Court will address each in turn.

A. State Law Discrimination Claim

A discrimination claim authorized by Chapter 613 of the Nevada Revised Statutes may not be " brought more than 180 days after the date of the act complained of." Nev. Rev. Stat. § 613.430. However, " [w]hen a complaint is filed with the Nevada Equal Rights Commission the limitation provided by this section is tolled . . . during the pendency of the complaint before the Commission." Id. Plaintiff filed his Complaint on October 18, 2013-563 days after April 3, 2012, the latest date his charge indicates that the discrimination occurred. (Mot. to Dism. Ex. 1). Even excluding the 347 days Plaintiff's charge was pending before the Nevada Equal Rights Commission (" NERC" ),[4] Plaintiff still had 216 days to file his state law discrimination claims with this Court;

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therefore these claims are untimely under Nev. Rev. Stat. § 613.430.

Plaintiff urges the Court to apply the doctrine of equitable tolling to excuse the claims' untimeliness. (Opp. 23:22-24: 15, ECF No. 37). Factors courts consider in determining whether to apply the doctrine of equitable tolling to Chapter 613 claims include:

the diligence of the claimant; the claimant's knowledge of the relevant facts; the claimant's reliance on authoritative statements by the administrative agency that misled the claimant about the nature of the claimant's rights; any deception or false assurances on the part of the employer against whom the claim is made; the prejudice to the employer that would actually result from delay during the time that the ...

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