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Robertson v. State ex rel. Department of Health and Human Services

United States District Court, D. Nevada

July 18, 2017

DEVON ROBERTSON, an individual, Plaintiff,
STATE OF NEVADA ex rel. Department of Health and Human Services; RUSSELL KLEIN, an individual; and GREGORY THORNTON, an individual, Defendants.



         Before the court is defendants' motion to dismiss plaintiff Devon Robertson's (“Robertson”) amended complaint (ECF No. 8). ECF No. 12. Plaintiff Robertson filed a response (ECF No. 21) to which defendants replied (ECF No. 24).

         I. Background

         On January 19, 2016, Robertson began employment as an academic teacher with Independence High School (“Independence”), an accredited high school in Elko, Nevada, and part of the State of Nevada Youth Training Camp operated by defendant State of Nevada Department of Health and Human Services (“DHHS”). Defendant Russell Klein (“Klein”) was the principal of Independence and functioned as Robertson's direct supervisor. Defendant Gregory Thornton (“Thornton”) is the superintendent of Independence and was Klein's direct supervisor.

         Robertson alleges that during her first few months at Independence, Klein began a “campaign charged with sexual innuendo, romantic advances, and outright overtures of a sexual nature” towards her which included an incident wherein Klein touched Robertson's thigh while making overt sexual comments. ECF No. 8 at ¶ 5. While Klein engaged in this sexually charged behavior, he praised Robertson's teaching acumen. For instance, in March 2016, Klein referred to Robertson as a “veteran teacher who handled herself tremendously in the classroom” in an email he sent to Thornton and other faculty. Id. at ¶ 4. After several months of Klein's behavior, on or about April 18, 2016, Robertson told Klein that she wanted a strictly professional relationship.

         After Robertson's rebuke, Klein immediately changed his behavior and attitude toward her. On April 21, 2016, Klein ordered Robertson to keep her classroom door open at all times. Robertson notified Klein that this open-door policy violated the fire code, created a hostile working environment, interfered with her ability to do her job, and violated her rights as a disabled person, but Klein continued the policy.[1] Id. At the time, no other teacher at Independence was subjected to the open-door policy. After this confrontation, Klein then began ignoring Robertson and when forced to respond, did so in short, accusatory tones. Id. In response, Robertson sought mediation through DHHS's Department of Human Resources (“HR”) to resolve her conflict with Klein, but her scheduled meeting was canceled. Id. at ¶ 6.

         A week later on April 28, 2016, Robertson met with Thornton and Klein for a scheduled performance appraisal. Id. at ¶ 6. During the meeting, Thornton and Klein concluded that Robertson met standards, but otherwise gave her a “disparaging appraisal”[2] and recommended that Robertson learn humility. Id. Robertson immediately contested the appraisal and a deputy administrator ultimately increased her performance score and struck certain items from the record.[3] Id. After Robertson initiated the appeal of her performance appraisal, Klein allegedly stated that he and Thornton would seek to terminate her for “going over [their heads]” to HR. Id.

         The next day, Klein allegedly told Robertson that she needed to say that she would do anything to keep her job. Id. at ¶8. Robertson refused and again told Klein that he was subjecting her to a hostile work environment, violating the fire code, and violating her rights as a disabled person. Id. Klein then told Robertson that Thornton had requested a meeting with her and that she must tell Thornton that she would do anything to keep her job and that she needed to be humble and “beg for forgiveness.” Robertson again refused. Id. at ¶ 10.

         After their latest discussion, Robertson alleges that Klein began to single her out and falsely accuse her of tardiness. Id. For example, on May 4, 2016, Robertson arrived at Independence 10 minutes early with another teacher, but Klein reprimanded Robertson for tardiness, despite the other teacher informing Klein that they arrived together. Id.

         In mid-July, Klein left Independence and was replaced by non-party Mikel Beardall (“Beardall”). Id. at ¶ 11. In late September, Robertson raised new concerns to HR regarding alleged bullying and intimidation by Thornton and Beardall. Id. Then, in early October, Robertson voiced concerns to Beardall regarding Independence's non-compliance with Special Education, Response to Interventions (RTI), and English Language Learners (ELL) program requirements. Id. During that conversation, Beardall allegedly told Robertson that the current procedures would remain in effect and not to complain again. Id. Shortly thereafter, Robertson filed intake paperwork with the Equal Employment Opportunity Commission (“EEOC”).[4] Id. Subsequently, on October 27, 2016, Thornton released Robertson from her probationary employment period, thereby terminating her employment. Id. Thereafter, on January 31, 2017, Robertson initiated this action against the defendants. ECF No. 1.

         II. Legal Standard

         Defendants seek dismissal of certain claims in Robertson's complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failing to state a claim upon which relief can be granted. A court reviewing a motion to dismiss under 12(b)(6) accepts the facts alleged in the complaint as true. To survive a 12(b)(6) motion, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Id. at 8(a)(2). The Rule 8(a)(2) pleading standard does not require detailed allegations, however, a pleading must be more than mere “‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Towmbly, 550 U.S. 544, 555 (2007)). While the court does accept factual allegations as true, “bare assertions. . . amount[ing] to nothing more than a formulaic recitation of the elements of a . . . claim . . . are not entitled to an assumption of truth.” Moss v. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 679) (brackets in original) (internal quotation marks omitted). The court discounts these allegations because “they do nothing more than state a legal conclusion-even if that conclusion is cast in the form of a factual allegation. Id. (citing Iqbal, 556 U.S. at 679).

         Furthermore, Rule 8(a)(2) of the Fed.R.Civ.P. requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face, '” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when the pleaded facts allow the court to draw a reasonable inference, based on judicial experience and common sense, that the defendant is liable for the alleged conduct. See Id. at 678-9. The standard asks for more than a mere possibility that a defendant has acted unlawfully. Id. at 678. Where a complaint pleads facts that are merely consistent with a theory of liability, “it stops short of the line between possibility and plausibility of entitlement to relief.” Id. Therefore, “for a complaint to survive a motion to dismiss, the non-conclusory ‘factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss, 572 F.3d at 969.

         III. ...

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