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Keener v. Antinoro

United States District Court, D. Nevada

May 21, 2019

MELANIE KEENER, an individual, Plaintiff,
GERALD R. ANTINORO, an individual; STOREY COUNTY, a political subdivision; And ROE ENTITIES VI-X, inclusive, Defendants.



         Presently before this Court are two motions by the Defendants: Motion for Summary Judgment (ECF No. 37) and Motion to Dismiss (ECF No. 47). The Plaintiff has filed two separate cases, which this Court consolidated into this single case. The Defendants move this Court to dismiss the new Title VII claims based on timeliness and the other claims as duplicative. The Defendants ask for summary judgment on all of the claims raised in the original complaint. The Court grants the Motion to Dismiss and denies the Motion for Summary Judgment.

         I. BACKGROUND

         The instant case arises out of the Plaintiff's employment with the Defendant, Storey County. The Plaintiff was the chief deputy and was supervised by the other Defendant, Mr. Gerald Antinoro, who is the county sheriff. The Plaintiff alleges that Mr. Antinoro sexually harassed her.

         The parties agree that in July 2015, the Plaintiff and Mr. Antinoro went alone together to the Nevada Sheriffs' and Chiefs' Association Conference (Conference) in Ely, Nevada. The Plaintiff rode with Mr. Antinoro to and from the event. Mr. Antinoro told the Plaintiff intimate details about his sex life while in the car. The two were staying at the same hotel with separate rooms for three days and two nights. During one of the nights, Mr. Antinoro sent the Plaintiff text messages that appear to contain sexual innuendos.

         Several months after the Conference, the Plaintiff filed a formal complaint against Mr. Antinoro with Storey County. The county hired an investigator, Mr. Don Christenson, to determine whether Mr. Antinoro violated any of Storey County's employment policies. Mr. Christenson found that Mr. Antinoro violated the county's policy prohibiting sexual harassment.

         The parties agree that shortly after she filed her complaint with Storey County that the Plaintiff was transferred to a new position. Mr. Austin Osborne works for Storey County in the Human Resources Department. He testified in his deposition that he sent the Plaintiff home the day that she filed the complaint, put her on administrative leave, took her police badge and identification card, and sometime shortly thereafter, transferred the Plaintiff to work at the County Manager's Office. In her deposition, the Plaintiff testified that the compensation for the transfer is the same, however, she lost much of her power and prestige as chief deputy.

         In May 16, 2017, the Plaintiff filed a Charge of Discrimination against Storey County Sheriff's Office with the Equal Employment Opportunity Commission (EEOC). In this charge, the Plaintiff only raised a retaliation charge and stated that the dates of the discrimination were from February 16, 2016 to May 2, 2016.

         This case began when the Plaintiff filed a complaint in state court against the Defendants alleging claims for intentional infliction of emotional distress and negligence under Nevada law and claims under 42 U.S.C. § 1983. The Defendants subsequently removed the case to this Court.

         Nearly eight months after the deadline to amend pleadings and near the end of discovery of the original case, the Plaintiff filed a substantially similar complaint also before this Court. The Plaintiff filed the second complaint about three months after receiving the right-to-sue letter from the EEOC. In the latter complaint, the Plaintiff realleged claims for intentional infliction of emotional distress and negligence and added two claims under Title VII for sexual harassment and retaliation. This Court ordered that the two cases be consolidated.


         The Court will first consider the Defendants' Motion to Dismiss the claims brought in the second complaint. The Defendants claim that the Court should dismiss the Nevada state-law causes of action as duplicative and that the Court should dismiss the Title VII claims arguing (1) that the additional claims circumvent the Court's scheduling order and (2) that the Plaintiff failed to properly exhaust administrative remedies with the EEOC.


         Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). Federal 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. 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. 1986).

         “Generally, 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) (citation 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.” Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994).

         A plaintiff must timely exhaust any administrative remedies before bringing a Title VII claim to court. Lyons v. England, 307 F.3d 1092, 1103-04 (9th Cir. 2002). However, courts generally treat a failure to exhaust non-judicial remedies as an affirmative defense. Jones v. Bock, 549 U.S. 199, 212 (2007). The court should not dismiss a case based on an affirmative defense unless the elements of the defense appear on the face of the pleading to be dismissed. Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 902 (9th Cir. 2013). Where an affirmative defense is not clear from the face of the complaint sought to be dismissed, it cannot be determined until (at least) the summary judgment stage. Albino v. Baca, 747 F.3d 1162, 1168-69 (9th Cir. 2014) (en banc).

         B. DISCUSSION

         First, the Defendants argue that the Court should dismiss the Title VII claims, because the time to amend the complaint has passed. The same substantive facts alleged in the first complaint give rise to the Title VII claims alleged in the second complaint. The Court ordered deadline to amend the pleadings ran almost eight months prior to the filing of the second complaint. The Plaintiff's addition of the new Title VII claims circumvents the Court's Scheduling Order (ECF No. 14). See Adams v. California Dep't of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007) overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880 (2008) (“Plaintiffs generally have no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant.”). Accordingly, the Court will treat the Plaintiff's new claims as a motion to modify the scheduling order and leave to amend.

         “Once the district court had filed a pretrial scheduling order pursuant to Federal Rule of Civil Procedure 16 which established a timetable for amending pleadings that rule's standards controlled.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). The Federal Rules allow a court to modify scheduling orders for “good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4). “Rule 16(b)'s good cause standard primarily considers the diligence of the party seeking the amendment. The district court may modify the pretrial schedule ‘if it cannot reasonably be met ...

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