United States District Court, D. Nevada
ORDER GRANTING IN
PART DEFENDANTS' MOTIONS TO DISMISS [DOCS. 24, 37]
JENNIFER A. DORSEY, District Judge.
Lea Baker sues the State of Nevada, its department of corrections (NDOC), and various of her colleagues and supervisors for sexual harassment, retaliation, discrimination, and various torts she claims she suffered while employed as a corrections officer at the Florence McClure Women's Correctional Center (FMWCC). In a pair of motions,  defendants now move to dismiss several of Baker's claims. I find that Baker's Title VII claims against the individual defendants fail as a matter of law because these defendants are not employers for Title VII purposes; that a significant portion of Baker's retaliation claim is further barred by her failure to exhaust administrative remedies; and that the Eleventh Amendment precludes Baker's state-law claims against the State of Nevada, NDOC, and the individual defendants sued in their official capacities. I further conclude that Baker has failed to state a plausible racial-discrimination claim under 42 U.S.C. § 1981, or an intentional-infliction-of-emotional-distress claim against anyone but Robert Hendrix, individually. Accordingly, I grant the motions in part, dismiss Baker's third cause of action and portions of her first, second, fourth, fifth, and eighth claims for relief, and give Baker until June 1, 2015, to file a proper motion for leave to amend.
Baker was a correctional officer at NDOC's FMWCC facility. She claims her troubles began when she was written up for a March 18, 2009, incident in the sally port "in relation to identifying inmates for transport and searching a vehicle before it left the institution." Baker alleges she was continually harassed by Curtis Ross, a senior correctional officer who was attracted to her. When Ross asked one of Baker's coworkers if the two were dating and inquired of Baker what she had done with her personal leave,  Baker responded in front of Correctional Lieutenant Robert Hendrix, "Don't ask me about my personal life. I've got nothing to say to you." Later that day, Ross placed his hand on her back, stepped beside her until their shoulders touched, and placed his arm around her waist in an action "like a hug" and told Baker she could have been written up for her lack of professionalism. Baker reported Ross to management. Nearly a month later, Baker received a notice of internal investigation, which Lieutenant Joseph Owens was charged with overseeing. The investigation was originally targeted at Baker for "staff discourtesy."
On November 9, 2009, Baker filed a complaint with the Nevada Equal Rights Commission (NERC) (#34B-2010-00190), which alleged that "NDOC, through Owens' official actions, discriminated against her because of her sexual orientation, by harassing and sexually harassing her." She alleged that the harassment ended on November 5, 2009, and the sexual harassment ended on October 9, 2009. On November 11, 2009, after Baker filed her NERC complaint, Owens interviewed her in connection with NDOC's internal investigation and clarified that his investigation actually pertained to Baker's allegations against Ross, not the other way around.
In January 2010, Baker was stationed to work in an armory that flooded, causing a health hazard. Despite Baker's complaints about the conditions, NDOC did not remedy the problem, and Baker "walked around in inches of water for a week." On January 27, 2010, after Baker cut her hand while trying to clean up the mess, another NDOC official informed Baker that Owens was taking her chair for his own use. Later, Baker saw Owens, Assistant Warden Frank Dreeson, and Hendrix search her work area, purportedly "looking for ways to retaliate against her."
Baker alleges she was retaliated against during a June 29, 2010, confrontation with an out-of-place inmate, T. Kernal. Kernal, who had a history of attacking officers in prison, first refused to show Baker her identification, then cursed Baker and charged at her. Another officer, Dimas, intercepted before the inmate reached Baker and later told Baker that he "saw Lieutenant Hendrix standing down the hall... observing the whole incident." Baker alleges that the event and Hendrix's disregard of her safety forced her to seek therapy.
Baker claims she endured a series of other allegedly retaliatory events. For example, on November 17, 2009, she filed a grievance contending that NDOC Director Skolnik, FMWCC Warden Sheryl Foster, and Dreeson, among others allowed improper shift bidding. On March 5, 2010, Baker was involved in an incident at the sally port, when Hendrix initially refused to provide her with information to protect her from a coworker's work-related decision. Baker also alleges that NDOC launched several retaliatory investigations against her for reporting sexually inappropriate conduct that Ross directed towards other NDOC staff. Baker contends she was retaliated against (1) on June 30, 2010, when she was removed from her position from the sally port without explanation,  (2) on August 9, 2010, when her request for sick leave was denied,  (3) on December 1, 2010, when she was suspended without pay for an alleged incident of misconduct arising from the March 18, 2009 sally port incident,  and (4) at an undefined date, when she received new post orders. After all of these incidents, on April 19, 2011, Baker amended her NERC complaint regarding sex and sex discrimination allegations. She contends she was ultimately forced to retire due to an on-the-job injury, and she was refused permission to be reassigned as a caseworker despite possessing all necessary qualifications.
On January 10, 2010, Baker filed an EEOC charge of discrimination, alleging sexual orientation discrimination: Ross sexually harassed her and Owens had been "rude, hostile, and sarcastic" after Baker reported Ross to management. On April 19, 2001, she amended her "ongoing" NERC complaint "regarding the sex and sexual orientation discrimination and retaliation she was facing" to add a retaliation charge. The amendment references the March 18, 2009, sally port incident, which Baker alleges had been investigated in "retaliation for filing a charge with NERC." She also reiterated the details of her sexual harassment charge, including that Owens "ha[d] been rude, hostile, and sarcastic after [she] filed the incident report." On February 27, 2014, the EEOC found reasonable cause to believe that Baker had been retaliated against for engaging in a protected activity, although it did not conclude that any sex or sexual orientation discrimination had occurred,  and Baker was issued her EEOC right-to-sue letter on July 7, 2014.
Baker sued NDOC Director Howard Skolnik, Foster, Dreesen, Ross, Hendrix, and Owens, along with the State of Nevada and NDOC on October 4, 2014. She alleges nine claims (often without specifying which defendant or defendants are targeted in each claim): (1) Title VII sexual harassment; (2) Title VII retaliation against all defendants except Ross; (3) violation of the Civil Rights Act of 1866; (4) sex discrimination under NRS 613.330; (5) sexual orientation discrimination under NRS 613.330; (6) criminal battery against Ross under NRS 200.481 and 41.690; (7) assault against all defendants under NRS 200.471 and NRS 41.690; (8) intentional infliction of emotional distress against all defendants; and (9) invasion of privacy against Ross, Dreesen, Hendrix, and Owens.
Defendants now bring two motions to dismiss. The first motion is brought by the state and NDOC, and by Skolnik, Foster, Dreesen, Ross, Hendrix, and Owens (collectively, the Individual Defendants) to the extent they are sued in their official capacities. They offer four arguments: (1) Baker complains of retaliatory acts that were not first administratively vetted by the Nevada Equal Rights Commission (NERC) or the Equal Employment Opportunity Commission (EEOC), and her Title VII retaliation claim must be dismissed as to those unexhausted incidents; (2) Baker's third claim for relief fails to state a cognizable racial discrimination claim and, regardless, it is barred by Eleventh Amendment immunity; (3) Baker's state-law claims for discrimination (NRS 613.330) and for intentional infliction of emotional distress are similarly barred by the Eleventh Amendment.
The second motion to dismiss is brought by Skolnik, Foster, Dreesen, Ross, and Hendrix in their individual capacities. They add the following arguments for dismissal: (1) as individuals and not employers, they can bear no Title VII liability; (2) Baker has failed to state a cognizable racial discrimination claim against anyone; (3) Baker has not stated a plausible intentional-infliction-of-emotional distress claim because the facts she pleads fall short of the high standard for extreme and outrageous conduct and physical impact or serious emotional distress necessary to prove this tort. I consider both motions together, working through the claims in the order presented in the complaint.
Federal Rule of Civil Procedure 8(a) governs the standard for pleadings in a federal cause of action and requires that "[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." "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." "[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." The court is also "not bound to accept as true a legal conclusion couched as a factual allegation." To state a "plausible" claim for relief, the plaintiff must "plead[ ] factual content ...