United States District Court, D. Nevada
C. JONES UNITED STATES DISTRICT JUDGE
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.
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.
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.
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
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
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.
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.
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
MOTION TO DISMISS
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.
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.
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).
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).
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.
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 ...