United States District Court, D. Nevada
M. Navarro, Chief Judge
before the Court is the Motion to Dismiss the First Amended
Complaint, (ECF No. 9), filed by Defendant United Airlines,
Inc. (“Defendant”). Plaintiff Peter Slack
(“Plaintiff”) filed a Response, (ECF No. 12), and
Defendant filed a Reply, (ECF No. 13).
pending before the Court is Plaintiff's Motion for Leave
to File Second Amended Complaint, (ECF No. 14). Defendant
filed a Response, (ECF No. 16), and Plaintiff filed a Reply,
(ECF No. 19).
reasons discussed below, the Court GRANTS in
part and DENIES in part
Defendant's Motion to Dismiss. Additionally, the Court
GRANTS in part and DENIES in
part Plaintiff's Motion for Leave to File Second
case arises from Defendant's December 29, 2017
termination of Plaintiff as its employee. (First Am. Compl.
(“FAC”) ¶¶ 16, 53). That termination
came after Defendant conducted an internal investigation into
Plaintiff for sexual harassment in the workplace.
(Id. ¶¶ 27-30, 40-44, 53).
internal investigation began on November 1, 2017, after
members of Plaintiff's working group (specifically, Leona
Lee and Markisha Jordan) accused Plaintiff of sexual
harassment. (Id. ¶¶ 26, 27). Upon
receiving those accusations, Defendant immediately placed
Plaintiff on paid administrative leave. (Id. ¶
investigation progressed, Plaintiff alleges that he provided
his own evidence to combat the harassment allegations,
alongside a statement from another employee of Defendant
stating that Plaintiff was not a threat or problematic.
(Id. ¶¶ 36-38). Plaintiff similarly
alleges that on December 14, 2017, as part of Defendant's
internal investigation, Plaintiff explained to
Defendant's General Manager, George Bieloszabski, and
Assistant General Manager, Sherida Derby, that
Defendant's workplace had a “pervasive culture of
inappropriate, sexual, and harassing comments.”
(Id. ¶¶ 50-52). At that time, Plaintiff
also pointed to his accusers, Lee and Jordan, as those who
made inappropriate comments involving sexual issues.
(Id. ¶¶ 50-51).
two weeks after that December 14, 2017 discussion, Defendant
terminated Plaintiff from his position. (Id. ¶
53). Plaintiff subsequently tried to appeal his termination
through Defendant's internal appellate procedures, but
without success. (Id. ¶¶ 60-66).
February 20, 2018, Plaintiff received a Right to Sue Letter
from the United States Equal Employment Opportunity
Commission (“EEOC”), in response to his filing of
a Charge of Discrimination against Defendant. (Id.
¶ 4). Plaintiff accordingly filed this action on May 17,
2018, alleging three claims for relief: (1) discrimination
based on race, color, national origin, gender and age in
violation of Nevada Revised Statute (“NRS”)
613.330 et. seq. and 42 U.S.C. § 2000e et.
seq. (“Title VII”); (2) retaliation in
violation of 42 U.S.C. § 2000e-3 and NRS 613.340; and
(3) violation of the Civil Rights Act of 1871, 42 U.S.C.
§ 1981. (Id. ¶¶ 67- 99). Plaintiff
then filed a First Amended Complaint, (ECF No. 6), based on
the same claims; and Defendant filed the instant Motion to
Dismiss, (ECF No. 9), soon after.
Motion to Dismiss
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. 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.
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). A formulaic
recitation of a cause of action with conclusory allegations
is not sufficient; a plaintiff must plead facts showing that
a violation is plausible, not just possible.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555).
may also dismiss a complaint pursuant to Federal Rule of
Civil Procedure 41(b) for failure to comply with Federal Rule
of Civil Procedure 8(a). Hearns v. San Bernardino Police
Dept., 530 F.3d 1124, 1129 (9th Cir. 2008). Rule 8(a)(2)
requires that a complaint contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). A court should
dismiss “Prolix, confusing complaints” as
“they impose unfair burdens on litigants and
judges.” McHenry v. Renne, 84 F.3d 1172, 1179
(9th Cir. 1996).
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) (citations 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
one for summary judgment. Branch v. Tunnell, 14 F.3d
449, 454 (9th Cir. 1994). Otherwise, if the court ...