United States District Court, D. Nevada
before the court is defendant NV Energy, Inc.'s motion to
dismiss. (ECF No. 9). Plaintiff Fred Rosenfeld filed a
response (ECF No. 11), to which defendant replied (ECF No.
age sixty-eight, was employed by defendant as an operator
from March 16, 1983, until his termination in November of
2016. (ECF No. 1). Plaintiff alleges that during his
employment he “endured various forms of discriminatory
conduct based on his protected category age.”
Id. Plaintiff asserts that discriminatory conduct
from his supervisors included “unfair criticisms”
of his work and performance and “unequal treatment by
management” that younger employees did not receive.
Id. He also alleges that defendant initiated and
enforced unfounded disciplinary actions against him that were
intended to harm plaintiff based on his age. Id.
alleges that supervisors made disparaging comments and
statements to him regarding retirement and that he was told
that he should leave his employment and retire due to his
age. Id. Plaintiff asserts that defendant wrongfully
terminated plaintiff's employment in November of 2016.
alleges that his termination was actually premised upon his
age, but that defendant based the termination on false
allegations of plaintiff's misconduct made by agents of
defendant. Id. Plaintiff asserts that he informed
defendant that he was being discriminated against and harmed
based on his age, but that defendant failed to protect
plaintiff from such harm. Id. Plaintiff suffered
harm and damages as a result of defendant's conduct.
December 12, 2017, plaintiff filed a complaint against
defendant, asserting claims of age discrimination and hostile
work environment. Id.
may dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). A properly pled complaint must provide “[a]
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). While Rule 8 does not require detailed factual
allegations, it demands “more than labels and
conclusions” or a “formulaic recitation of the
elements of a cause of action.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
allegations must be enough to rise above the speculative
level.” Twombly, 550 U.S. at 555. Thus, to
survive a motion to dismiss, a complaint must contain
sufficient factual matter to “state a claim to relief
that is plausible on its face.” Iqbal, 556
U.S. at 678 (citation omitted).
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, the court must accept as true all
well-pled factual allegations in the complaint; however,
legal conclusions are not entitled to the assumption of
truth. Id. at 678-79. Mere recitals of the elements
of a cause of action, supported only by conclusory
statements, do not suffice. Id. at 678.
the court must consider whether the factual allegations in
the complaint allege a plausible claim for relief.
Id. at 679. A claim is facially plausible when the
plaintiff's complaint alleges facts that allow the court
to draw a reasonable inference that the defendant is liable
for the alleged misconduct. Id. at 678.
the complaint does not permit the court to infer more than
the mere possibility of misconduct, the complaint has
“alleged-but not shown-that the pleader is entitled to
relief.” Id. (internal quotation marks
omitted). When the allegations in a complaint have not
crossed the line from conceivable to plausible,
plaintiff's claim must be dismissed. Twombly,
550 U.S. at 570.
Ninth Circuit addressed post-Iqbal pleading
standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th
Cir. 2011). The Starr court stated, in relevant
First, to be entitled to the presumption of truth,
allegations in a complaint or counterclaim may not simply
recite the elements of a cause of action, but must contain
sufficient allegations of underlying facts to give fair
notice and to enable the opposing party to defend itself
effectively. Second, the factual allegations that are taken
as true must plausibly suggest an entitlement to relief, such
that it is not ...