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

United States District Court, D. Nevada

October 11, 2017

STATE OF NEVADA, ex rel. Department of Health and Human Services; RUSSELL KLEIN; and GREGORY THORNTON; Defendants.



         Before the court is defendants the State of Nevada ex rel. the Department of Health and Human Service, Russell Klein, and Gregory Thornton's (collectively “defendants”) motion to dismiss plaintiff Devon Robertson's (“Robertson”) second amended complaint (ECF No. 29). ECF No. 32. Plaintiff Robertson filed an opposition (ECF No. 33) to which defendants replied (ECF No. 34).

         I. Facts and Procedural Background

         On January 19, 2016, Robertson was hired as a teacher at Independence High School (“Independence”), a public state-sponsored charter school located in Elko, Nevada, and operated by defendant State of Nevada Department of Health and Human Services (“DHHS”). Defendant Russel Klein (“Klein”) was the principal of Independence at that time and functioned as Robertson's direct supervisor. Defendant Gregory Thornton (“Thornton”) is the superintendent of Independence and was Klein's supervisor.

         During Robertson's first few months at Independence, Klein allegedly began sexually harassing Robertson leading to an incident in early April 2016, wherein Klein allegedly made a direct and overt sexual advance towards her while touching her thigh. Robertson then told Klein that she wanted a strictly professional relationship. Thereafter, Klein allegedly changed his attitude toward Robertson and her work performance.

         On April 28, 2016, ten days after Robertson rejected Klein's alleged advances, Robertson met with Thornton and Klein for a scheduled performance appraisal. During the meeting, Thornton and Klein concluded that Robertson met standards, but gave her an allegedly disparaging appraisal and recommended that Robertson learn humility. Robertson immediately contested the appraisal and a deputy administrator ultimately increased her performance score and struck certain items from the record.[1] 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. Robertson refused and Klein then told her that Thornton had requested a meeting and that during the meeting 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 once again refused. A few weeks later, on May 18, 2016, Robertson then filed intake paperwork with the Equal Employment Opportunity Commission (“EEOC”) for alleged gender and disability discrimination. In mid-July, Klein left Independence and was replaced by non-party Mikel Beardall (“Beardall”) to serve as Principal. Then on or about mid-October 2016, defendants allegedly learned that Robertson had filed a complaint with the EEOC. Subsequently, on October 27, 2016, Thornton terminated Robertson from her employment.

         On January 31, 2017, Robertson initiated the underlying action against defendants. ECF No. 1. On May 15, 2017, Robertson filed a first amended complaint alleging three causes of action: (1) First Amendment retaliation; (2) gender discrimination;[2] and (3) violation of the Rehabilitation Act. ECF No. 8. In response, defendants filed a motion to dismiss the first amended complaint (ECF No. 12) which was granted by the court (ECF No. 28). In that order, the court found that the claims alleged against defendants Klein and Thornton failed to state a claim for which relief can be granted. See ECF No. 28. However, because Robertson argued that she could rectify the identified pleading deficiencies in her first amended complaint, the court granted her leave to file a second amended complaint. Id. Thereafter, on August 7, 2017, Robertson filed a second amended complaint alleging the same causes of action against defendants. ECF No. 29. In response, defendants filed the present motion to dismiss the second amended complaint. ECF No. 32.

         II. Legal Standard

         Defendants seek dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a legally cognizable cause of action. See Fed. R. Civ. P. 12(b)(6) (stating that a party may file a motion to dismiss for “failure to state a claim upon which relief can be granted[.]”). To survive a motion to dismiss for failure to state a claim, a complaint must satisfy the notice pleading standard of Rule 8(a)(2) of the Federal Rules of Civil Procedure. See Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th Cir. 2008). Under Rule 8(a)(2), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 8(a)(2) does not require detailed factual allegations; however, a pleading that offers only “‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action'” is insufficient and fails to meet this broad pleading standard. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         To sufficiently allege a claim under Rule 8(a)(2), viewed within the context of a Rule 12(b)(6) 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.'” Id. (quoting Twombly, 550 U.S. at 570). A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference, based on the court's judicial experience and common sense, that the defendant is liable for the alleged misconduct. See Id. at 678-679 (stating that “[t]he plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.”) (internal quotation marks and citations omitted). Further, in reviewing a motion to dismiss, the court accepts the factual allegations in the complaint as true. Id. However, bare assertions in a complaint amounting “to nothing more than a formulaic recitation of the elements of a . . . claim . . . are not entitled to an assumption of truth.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 698) (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. “In sum, 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.” Id.

         III. Discussion

         A. First Amendment Retaliation

         In order to state a claim for employment retaliation in violation of her First Amendment rights, a plaintiff must allege that: (1) she engaged in protected speech; (2) that she was subjected to an “adverse employment action”; and (3) that her speech was a “substantial or motivating” factor for the adverse employment action. Board of County Com'rs, Wabaunsee County, Kan. v. Umbehr, 518 U.S. 668, 675-6 (1996). An employee engages in protected speech when that speech addresses “a matter of legitimate public concern.” Pickering v. Bd of Educ., 391 U.S. 563, 571 (1968). Protected speech also includes speech divulging information necessary for the public to “make informed decisions about the operation of their government, ” even if that speech falls within the scope of the employee's employment, but not information ...

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