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Bedard v. Wynn Las Vegas, LLC

United States District Court, D. Nevada

June 30, 2019

MORRIS BEDARD, Plaintiff,
v.
WYNN LAS VEGAS, LLC, et al., Defendants.

          ORDER

          GLORIA M. NAVARRO, CHIEF JUDGE

         Pending 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.

         I. BACKGROUND

         This 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).

         In May 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).

         Following 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. ¶¶ 17-20).

         On 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).

         In 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).

         On 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. ¶ 39).

         On May 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 No. 1).

         II. LEGAL STANDARD

         Rule 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. 1986).

         The 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.

         “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) (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 ...


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