United States District Court, D. Nevada
ORDER GRANTING MOTION TO DISMISS
D. McKibben Senior U.S. District Judge
Washoe County Sheriff's Office and Chuck Allen move to
dismiss under Fed.R.Civ.P. 12(b)(6). Plaintiff Heidi Howe
responded, and Defendants replied. Howe concedes that claims
against Defendant Allen, in his individual capacity, are
“unnecessary.” ECF 13 at 27 n.3. The Court finds
and concludes that Howe's first, third, and fourth causes
of action are time-barred. The Court, in its discretion,
elects to not exercise supplemental jurisdiction over
Howe's second cause of action.
case arises from an employment relationship between Howe and
the Washoe County Sherriff's Office. She started there in
1991. In 2005 and 2009, she sought relief at the EEOC for
alleged gender discrimination, sexism, and unfair treatment.
The first EEOC case ended in an arbitration in her favor. And
the second EEOC case ended in a settlement.
events that followed the revelations of those actions
constitute the basis for the current suit. The most recent
discrete act of alleged retaliation or a sexually hostile
work environment occurred on April 14, 2016, when Howe was
not promoted to Chief Deputy. See ECF 13 at 11; ECF
1 at 12. Howe reported that act by filing an intake
questionnaire with the EEOC on February 3, 2017, as well as a
charge with NERC on March 29, 2017.
considering a motion to dismiss for failure to state a claim,
courts must “accept factual allegations in the
complaint as true and construe the pleadings in the light
most favorable to the non-moving party.” Fayer v.
Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011). The
motion's purpose is to test only “the legal
sufficiency of a claim.” Navarro v. Block, 250
F.3d 729, 732 (9th Cir. 2001). Thus, courts may grant the
motion only if the plaintiff would not be entitled to relief
under any set of facts that could be proved in support of the
claim. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336,
338 (9th Cir. 1996).
move to dismiss Howe's four causes of action: retaliation
under Title VII, gender discrimination and hostile work
environment under Title VII, negligent supervision and
training, and breach of contract. The Court discusses each
claim in turn.
First and Third Causes of Action: Title VII Claims
commence a Title VII claim, the plaintiff must file a charge
with the EEOC within 180 days-or, if the plaintiff
“initially instituted proceedings” with a state
agency having authority to seek relief from unlawful
employment practices, within 300 days-after the alleged
unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1);
see Laquaglia v. Rio Hotel & Casino, Inc., 186
F.3d 1172, 1174 (9th Cir. 1999). Nevada has such an agency:
the Nevada Equal Rights Commission (NERC). However, for the
300-day period to apply, a plaintiff must have
“initially instituted proceedings” with NERC; if
that did not happen, the 180-day period applies. See
Scott v. Gino Morena Enterprises, LLC, 888 F.3d 1101,
1106 & n.2 (9th Cir. 2018).
First Cause of Action: Retaliation
first filed an intake questionnaire with the EEOC 295 days
after the alleged act of retaliation. See Fed. Exp. Corp.
v. Holowecki, 552 U.S. 389, 404-06 (2008) (noting that
intake questionnaires may be construed as charges). Because
Howe did not begin proceedings with NERC, the 180-day period
applies. Therefore, any claim based on that questionnaire is
beyond Title VII's time limits. Second, she filed a
charge with NERC 349 days after the alleged act of
retaliation. Because Howe began proceedings with NERC, the
300-day period applies. Therefore, any claim based on
retaliation is also time-barred. Neither of Howe's
charges falls within Title VII's time limits (and Howe
does not argue for tolling). Accordingly, the Court will
dismiss Howe's first cause of action with prejudice.
Third Cause of Action: Gender Discrimination and ...