United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE
before the Court are the Motions to Dismiss, (ECF Nos. 8,
14), filed by Defendants Wynn Las Vegas, LLC
(“Wynn”), and John Choate (“Choate”)
(collectively “Defendants”). Plaintiff Morris
Bedard (“Plaintiff”) filed a Response, (ECF No.
16), and Defendants filed a Reply, (ECF No. 17). For the
reasons stated herein, Defendants' Motions to Dismiss are
GRANTED in part and DENIED in part.
case arises out of Plaintiff's allegations of misconduct
against his former employer, Wynn, and the director of
security, Choate. (Compl., Ex. 1 to Pet. of Removal, ECF No.
1-1). Plaintiff began his employment at Wynn on December 18,
2006, as a Casino Security Officer. (Id. ¶ 4).
In this position, Plaintiff was responsible for both
preparing comprehensive security reports and
training/evaluating new and existing officers. (Id.
¶¶ 5, 6).
2016, Wynn hired Choate as the new executive director of
Wynn's security. (Id. ¶ 8). As security
director, Choate implemented a security program called the
Special Operations Guards (“SOG”). (Id.
¶ 10). The goal of this program was to “prevent
an armed terrorist attack or active shooter situation at Wynn
properties.” (Id.). Choate recruited former
U.S. Marine Embassy Guards for these positions. (Id.
¶¶ 11, 12).
SOG's formation, Plaintiff alleges that casino officers
became displeased with management over perceived
“inequity problems.” (Id. ¶¶
15, 16). Specifically, Plaintiff alleges that casino officers
were displeased that SOG members received over double their
salary. (Id.). Additionally, Plaintiff alleges that
the casino officers were displeased because they were
“denied any access to becoming a member of the SOG
team, ” despite having “similar or greater
experience.” (Id.). As a result of these
perceived inequities, Plaintiff and the casino officers began
inquiring into the unionization process. (See Id.
February 1, 2017, Choate and a human resource manager, Brian
Parker, met with Plaintiff regarding these unionization
efforts. (Id. ¶ 22). In this meeting, Choate
allegedly threatened to terminate Plaintiffs employment if he
continued trying to form a union. (Id. ¶ 23).
In addition, Choate allegedly made numerous derogatory
comments regarding Plaintiffs age. (Id. ¶ 25).
At the conclusion of the meeting, Choate requested that
Plaintiff help identify and correct the casino officers'
complaints. (Id. ¶ 26).
accordance with Choate's request, Plaintiff allegedly
approached the security department supervisor, Paul Roberson,
with a list of the casino security officers' complaints
and proposed solutions. (Id. ¶ 28). Following
their conversation, however, Plaintiff asserts that Paul
Roberson completed an “Employee Voluntary
statement” with a highly inaccurate and misconstrued
account of their meeting. (Id. ¶ 29). Based on
Roberson's report-as well as a “comment”
Plaintiff had purportedly made to a member of the SOG
team-Wynn initiated a misconduct investigation against
Plaintiff. (Id. ¶ 30).
February 22, 2017, after concluding its investigation, Wynn
terminated Plaintiff for willful misconduct and violation of
company policy. (Id. ¶ 32). During the
investigation and termination process, Plaintiff claims that
he was “not given access to the steps of the
Progressive Discipline process clearly stated in Wynn
employee Handbook.” (Id. ¶ 33). On March
6, 2017, Plaintiff filed a complaint against Wynn through the
SPFPA International Union and National Labor Relations Board,
asserting that Wynn terminated Plaintiff in retaliation for
protected activities. (Id. ¶ 37). On August 14,
2017, an agreement was reached between the SPFPA
International Union and Wynn to “drop all references to
Plaintiff being terminated for protected activities” in
return for Wynn “agreeing to post protected activity
safeguards on employee boards.” (Id. ¶
38). Plaintiff claims he was not given an opportunity to
participate in this agreement process. (Id. ¶
30, 2017, Plaintiff filed a complaint against Wynn through
the Equal Employment Opportunity Commission
(“EEOC”) for age discrimination. (Id.
¶ 41). Plaintiff based this complaint on Wynn's
failure to discipline Choate for his derogatory comments
towards Plaintiffs age and failure to consider him for a
promotion. (See Id. ¶ 45). The EEOC issued its
right to sue letter on December 15, 2017. (Id.
¶ 46). On July 26, 2018, Plaintiff initiated this action
in state court, alleging claims for: (1) violation of federal
statutes; (2) breach of contract; and (3) negligence. On
September 4, 2018, Defendants removed the case to this Court
based on federal-question jurisdiction. (Pet. of Removal, ECF
12(b)(6) of the Federal Rules of Civil Procedure mandates
that a court dismiss a cause of action that fails to state a
claim upon which relief can be granted. See North 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) (emphasis added). In order
to survive a motion to dismiss, a complaint must allege
“sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”
Id. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id.
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
a motion for summary judgment. Branch v. Tunnell, 14
F.3d 449, 454 (9th Cir. 1994). Under Federal Rule of Evidence
201, a court may take judicial notice of “matters of
public record.” Mack v. S. Bay Beer Distrib.,
798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the