United States District Court, D. Nevada
January 4, 2017
DARLENA DOUGLAS, Plaintiff,
WAL-MART STORES, INC., Defendant.
C. JONES United States District Judge
case arises out of alleged workplace discrimination. Pending
before the Court is a Motion to Dismiss or for a More
Definite Statement (ECF No. 8).
FACTS AND PROCEDURAL HISTORY
Darlena Douglas was employed by Defendant Wal-Mart Stores,
Inc. at one of Defendant's stores in Washoe County,
Nevada from January 2012 until she was terminated or resigned
on an unspecified date. (See Compl. ¶¶ 1,
8, ECF No. 1). Plaintiff has sued Defendant in this Court
for: (1) “Gender/Pregnancy Discrimination/Hostile Work
Environment”; (2) Pregnancy Discrimination; (3)
Retaliation; and (4) FMLA Retaliation. Defendant has moved to
dismiss for failure to state a claim or for a more definite
Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is
entitled to relief” in order to “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Conley v.
Gibson, 355 U.S. 41, 47 (1957). Federal Rule of Civil
Procedure 12(b)(6) mandates that a court dismiss a cause of
action that fails to state a claim upon which relief can be
granted. A motion to dismiss under Rule 12(b)(6) tests the
complaint's sufficiency. See N. Star Int'l v.
Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir.
1983). When considering a motion to dismiss under Rule
12(b)(6) for failure to state a claim, dismissal is
appropriate only when the complaint does not give the
defendant fair notice of a legally cognizable claim and the
grounds on which it rests. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In considering
whether the complaint is sufficient to state a claim, the
court will take all material allegations as true and construe
them in the light most favorable to the plaintiff. See NL
Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.
1986). The court, however, is not required to accept as true
allegations that are merely conclusory, unwarranted
deductions of fact, or unreasonable inferences. See
Sprewell v. Golden State Warriors, 266 F.3d 979, 988
(9th Cir. 2001).
formulaic recitation of a cause of action with conclusory
allegations is not sufficient; a plaintiff must plead facts
pertaining to his own case making a violation
“plausible, ” not just “possible.”
Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009)
(citing Twombly, 550 U.S. at 556) (“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.”). That is, under the modern interpretation of
Rule 8(a), a plaintiff must not only specify or imply a
cognizable cause of action (Conley review), but also
must allege the facts of his case so that the court can
determine whether the plaintiff has any basis for relief
under the cause of action he has specified or implied,
assuming the facts are as he alleges (Twombly-Iqbal
review). Put differently, Conley only required a
plaintiff to identify a major premise (a cause of action),
but Twombly and Iqbal require a plaintiff
also to allege minor premises (facts of the plaintiff's
case) such that the syllogism showing liability is logically
complete and that liability necessarily, not only possibly,
follows (assuming the allegations are true). Also, if a
complaint is so vague or ambiguous that the defendant cannot
reasonably prepare a response, the court may order the
plaintiff to make a more definite statement. Fed.R.Civ.P.
a district court may not consider any material beyond the
pleadings in ruling on a Rule 12(b)(6) motion. However,
material which is properly submitted as part of the complaint
may be considered on a motion to dismiss.” Hal
Roach Studios, Inc. v. Richard Feiner & Co., 896
F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted).
Similarly, “documents whose contents are alleged in a
complaint and whose authenticity no party questions, but
which are not physically attached to the pleading, may be
considered in ruling on a Rule 12(b)(6) motion to
dismiss” without converting the motion to dismiss into
a motion for summary judgment. Branch v. Tunnell, 14
F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule
of Evidence 201, a court may take judicial notice of
“matters of public record.” Mack v. S. Bay
Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir.
1986). Otherwise, if the district court considers materials
outside of the pleadings, the motion to dismiss is converted
into a motion for summary judgment. See Arpin v. Santa
Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.
the claims may be pled in an overlapping fashion, the Court
finds that the factual allegations and legal theories are not
so intractably pled so as to require a more definite
statement. Defendant has sufficiently presented its defense
of failure to state a claim based on the Complaint as pled.
Court grants the motion to dismiss in part, with leave to
amend, as to the first cause of action insofar as it is
directed to discrimination on the basis of sex as such, i.e.,
the fact that Plaintiff is a woman. Plaintiff's
allegations do not imply any discrimination on the basis of
sex as such, but only on the basis of pregnancy.
(See Compl. ¶ 10 (“Defendant demoted
Plaintiff from the position of OTC Manager to Retail
Associate because she was pregnant [when she failed to step
down from that position.]”)). Discrimination on the
basis of pregnancy is unlawful under 42 U.S.C. §
2000e-2(a) because Title VII defines pregnancy discrimination
as a type of “sex” discrimination. See
Id. § 2000e(k). Plaintiff has separately alleged
pregnancy discrimination under the second cause of action.
the first cause of action does not state a claim for a
hostile workplace environment (“HWE”).
“When the workplace is permeated with
‘discriminatory intimidation, ridicule, and insult,
' that is ‘sufficiently severe or pervasive to
alter the conditions of the victim's employment and
create an abusive working environment, ' Title VII is
violated.” Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (citations omitted). A Title
VII offense requires more than “mere utterance of an .
. . epithet” causing offensive feelings but does not
require an environment so severe as to cause a nervous
breakdown. Id. at 21-22. The conduct must be severe
or pervasive enough that a reasonable person would consider
it hostile or abusive. Id. at 21.
[W]hether an environment is “hostile” or
“abusive” can be determined only by looking at
all the circumstances. These may include the frequency of the
discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee's work performance. The effect on the
employee's psychological well-being is, of course,
relevant to determining whether the plaintiff actually found
the environment abusive. But while psychological harm, like
any other relevant factor, may be taken into account, no
single factor is required.
Id. at 23. Plaintiff's HWE allegations consist
of “insulting and disparaging remarks, directly related
to Plaintiff's pregnancy, ” with only one example,
i.e., “you are so lazy-if you'd around [sic] a
little bit it [pain relating to pregnancy] wouldn't be so
bad.” (Compl. ¶ 10). She also alleges she was
given “difficult tasks, such as climbing ladders and
lifting heavy boxes” and that she was not allowed to
have water with her while working on the floor.”
(Id.). Although one or several comments of this
magnitude are probably not sufficient alone, the allegations
of being assigned additional physical work because of her
pregnancy would probably suffice. However, Plaintiff only
alleges that she was assigned to lift boxes and climb ladders
and that she was not allowed to have water on the sales
floor. She has not alleged these conditions would not have
existed if she were not pregnant.
Plaintiff has not sufficiently pled Title VII retaliation.
She alleges she was demoted based on her pregnancy, not
because of any protected activity. (See id.). Such
an allegation might be implied, because Plaintiff alleges she
complained about her supervisor's pregnancy-based
harassment as early as January 2013, but Plaintiff does not
allege who made the decision to demote her or when that
decision was made, so a causal nexus has not been
sufficiently alleged. Plaintiff has conceded that the claim
of FMLA retaliation is time barred.
summary, the Court dismisses the first cause of action, with
leave to amend as to sex discrimination and a HWE. If
Plaintiff wishes to amend either of those claims, she should
plead them as separate causes of action in an amended
complaint. The Court will not dismiss the second cause of
action for pregnancy discrimination. The Court dismisses the
third and fourth causes of action for retaliation under Title
VII and the FMLA, respectively, with leave to amend the
HEREBY ORDERED that the Motion to Dismiss (ECF No. 8) is
GRANTED IN PART, with leave to amend in part, and DENIED IN
PART. Plaintiff may amend within twenty-one (21) days of this