1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 JOSE M. REYES MENDEZ, Case No. 2:25-cv-02387-CDS-EJY
5 Plaintiff, ORDER 6 v.
7 SPECIAL OPERATIONS ASSOCIATES, INC., 8 Defendant. 9 10 Plaintiff is appearing in this action pro se and has requested authority under 28 U.S.C. § 1915 11 to proceed in forma pauperis. ECF No. 1. Plaintiff also submitted a Complaint attached to his in 12 forma pauperis application. ECF No. 1-1 13 I. In Forma Pauperis Application 14 Plaintiff’s application to proceed in forma pauperis is complete and demonstrates an inability 15 to prepay filing fees and costs or give security for the same. Thus, Plaintiff is granted in forma 16 pauperis status under 28 U.S.C. § 1915(a). 17 II. Screening the Complaint 18 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 19 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims 20 and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be granted 21 or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 22 Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for failure to state 23 a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 24 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient factual matter, 25 accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 26 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only dismiss them 27 “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 1 would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 2 556 U.S. at 678). 3 In considering whether the complaint is sufficient to state a claim, all allegations of material 4 fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship 5 v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although the 6 standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide 7 more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 8 A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is clear the 9 complaint’s deficiencies cannot be cured through amendment, a pro se plaintiff should be given 10 leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v. United 11 States, 70 F.3d 1103, 1106 (9th Cir. 1995). 12 III. Plaintiff Fails to State a Claim Upon Which Relief May Be Granted 13 Plaintiff alleges only one claim in his Complaint—that is, wrongful termination. ECF No. 14 1-1 at 1, 5. Nonetheless, attached to the Complaint are Plaintiff’s Charge of Discrimination filed 15 with Equal Employment Opportunity Commission (“EEOC”) and a Right to Sue Notice. Id. at 9, 16 11-12. Despite these attachments, Plaintiff fails to state a cognizable claim. 17 a. Wrongful Termination 18 Regarding Plaintiff’s “wrongful termination” assertion, it is true that a Nevada employer who 19 terminates employment “by means … deemed to be contrary to the public policy of this state” is 20 liable in tort to the employee for tortious discharge. D’Angelo v. Gardner, 819 P.2d 206, 216 (Nev. 21 1991). This exception to Nevada’s general at-will employment rule is “a narrow one” requiring an 22 employee to plead and then prove that termination was “based upon the employee[] refusing to 23 engage in conduct that was violative of public policy or upon the employee[] engaging in conduct 24 which public policy favors ….” Bigelow v. Bullard, 901 P.2d 630, 632 (Nev. 1995). See also Wiltsie 25 v. Baby Grand Corp., 774 P.2d 432 (Nev. 1989) (per curiam) (recognizing whistleblowing as 26 conduct that favors Nevada public policy); Allum v. Valley Bank of Nevada, 970 P.2d 1062 (Nev. 27 1998) (recognizing that it is against public policy to terminate an employee who refuses to engage 1 394, 397 (Nev. 1984) (recognizing tortious discharge for firing an employee who seeks worker 2 compensation benefits). 3 Here, Plaintiff pleads no facts demonstrating his termination resulted from either (1) his 4 refusal to engage in conduct that violated Nevada’s strong public policy interests or (2) his 5 engagement in conduct protected by Nevada’s public policy interests. ECF No. 1-1, generally. 6 Thus, Plaintiff does not state an essential element of a wrongful termination claim. 7 Further, to the extent Plaintiff seeks to bring a wrongful termination (or tortious discharge) 8 claim based on laws prohibiting discrimination, harassment, or retaliation enforced under Title VII 9 of the 1964 Civil Rights Act, or other federal or state law prohibiting such conduct, the claim fails 10 as a matter of law. The Nevada Supreme Court holds that discrimination under federal and state 11 laws do not warrant the extension of the public policy exception to the “at-will” employment 12 doctrine. Chavez v. Sievers, 43 P.3d 1022, 1025-26 (Nev. 2002); Sands Regent v. Valgardson, 777 13 P.2d 898, 899-90 (Nev. 1989). 14 In sum, Plaintiff fails to state a cognizable wrongful termination (tortious discharge) claim 15 on which he can proceed. However, with an opportunity to amend Plaintiff may be able to state 16 such a claim. Therefore, this claim is dismissed without prejudice and with leave to amend. 17 b. Plaintiff States no Claim Based on Claims Brought Before the EEOC. 18 If Plaintiff is seeking to bring a claim exhausted by filing his Charge of Discrimination before 19 the EEOC, he fails to do so. Even though Plaintiff received a Notice of Right to Sue, Plaintiff’s 20 Charge does not identify the basis for the alleged discrimination he claims. ECF No. 1-1 at 11-12. 21 Instead, Plaintiff states only that he “was discriminated against.” Id. at 11. “In order to bring a Title 22 VII claim in district court, a plaintiff must first exhaust [his] administrative remedies.” Sommatino 23 v. United States, 255 F.3d 704, 707 (9th Cir. 2001). Federal courts will consider only those claims 24 that are like or reasonably related to the allegations in the charge. Stache v. International Union of 25 Bricklayers, 852 F.2d 1231, 1234 (9th Cir. 1988), cert. denied, 493 U.S. 815 (1989). Plaintiff’s 26 Charge is silent with respect to the basis for discrimination.
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1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 JOSE M. REYES MENDEZ, Case No. 2:25-cv-02387-CDS-EJY
5 Plaintiff, ORDER 6 v.
7 SPECIAL OPERATIONS ASSOCIATES, INC., 8 Defendant. 9 10 Plaintiff is appearing in this action pro se and has requested authority under 28 U.S.C. § 1915 11 to proceed in forma pauperis. ECF No. 1. Plaintiff also submitted a Complaint attached to his in 12 forma pauperis application. ECF No. 1-1 13 I. In Forma Pauperis Application 14 Plaintiff’s application to proceed in forma pauperis is complete and demonstrates an inability 15 to prepay filing fees and costs or give security for the same. Thus, Plaintiff is granted in forma 16 pauperis status under 28 U.S.C. § 1915(a). 17 II. Screening the Complaint 18 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 19 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims 20 and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be granted 21 or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 22 Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for failure to state 23 a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 24 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient factual matter, 25 accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 26 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only dismiss them 27 “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 1 would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 2 556 U.S. at 678). 3 In considering whether the complaint is sufficient to state a claim, all allegations of material 4 fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship 5 v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although the 6 standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide 7 more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 8 A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is clear the 9 complaint’s deficiencies cannot be cured through amendment, a pro se plaintiff should be given 10 leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v. United 11 States, 70 F.3d 1103, 1106 (9th Cir. 1995). 12 III. Plaintiff Fails to State a Claim Upon Which Relief May Be Granted 13 Plaintiff alleges only one claim in his Complaint—that is, wrongful termination. ECF No. 14 1-1 at 1, 5. Nonetheless, attached to the Complaint are Plaintiff’s Charge of Discrimination filed 15 with Equal Employment Opportunity Commission (“EEOC”) and a Right to Sue Notice. Id. at 9, 16 11-12. Despite these attachments, Plaintiff fails to state a cognizable claim. 17 a. Wrongful Termination 18 Regarding Plaintiff’s “wrongful termination” assertion, it is true that a Nevada employer who 19 terminates employment “by means … deemed to be contrary to the public policy of this state” is 20 liable in tort to the employee for tortious discharge. D’Angelo v. Gardner, 819 P.2d 206, 216 (Nev. 21 1991). This exception to Nevada’s general at-will employment rule is “a narrow one” requiring an 22 employee to plead and then prove that termination was “based upon the employee[] refusing to 23 engage in conduct that was violative of public policy or upon the employee[] engaging in conduct 24 which public policy favors ….” Bigelow v. Bullard, 901 P.2d 630, 632 (Nev. 1995). See also Wiltsie 25 v. Baby Grand Corp., 774 P.2d 432 (Nev. 1989) (per curiam) (recognizing whistleblowing as 26 conduct that favors Nevada public policy); Allum v. Valley Bank of Nevada, 970 P.2d 1062 (Nev. 27 1998) (recognizing that it is against public policy to terminate an employee who refuses to engage 1 394, 397 (Nev. 1984) (recognizing tortious discharge for firing an employee who seeks worker 2 compensation benefits). 3 Here, Plaintiff pleads no facts demonstrating his termination resulted from either (1) his 4 refusal to engage in conduct that violated Nevada’s strong public policy interests or (2) his 5 engagement in conduct protected by Nevada’s public policy interests. ECF No. 1-1, generally. 6 Thus, Plaintiff does not state an essential element of a wrongful termination claim. 7 Further, to the extent Plaintiff seeks to bring a wrongful termination (or tortious discharge) 8 claim based on laws prohibiting discrimination, harassment, or retaliation enforced under Title VII 9 of the 1964 Civil Rights Act, or other federal or state law prohibiting such conduct, the claim fails 10 as a matter of law. The Nevada Supreme Court holds that discrimination under federal and state 11 laws do not warrant the extension of the public policy exception to the “at-will” employment 12 doctrine. Chavez v. Sievers, 43 P.3d 1022, 1025-26 (Nev. 2002); Sands Regent v. Valgardson, 777 13 P.2d 898, 899-90 (Nev. 1989). 14 In sum, Plaintiff fails to state a cognizable wrongful termination (tortious discharge) claim 15 on which he can proceed. However, with an opportunity to amend Plaintiff may be able to state 16 such a claim. Therefore, this claim is dismissed without prejudice and with leave to amend. 17 b. Plaintiff States no Claim Based on Claims Brought Before the EEOC. 18 If Plaintiff is seeking to bring a claim exhausted by filing his Charge of Discrimination before 19 the EEOC, he fails to do so. Even though Plaintiff received a Notice of Right to Sue, Plaintiff’s 20 Charge does not identify the basis for the alleged discrimination he claims. ECF No. 1-1 at 11-12. 21 Instead, Plaintiff states only that he “was discriminated against.” Id. at 11. “In order to bring a Title 22 VII claim in district court, a plaintiff must first exhaust [his] administrative remedies.” Sommatino 23 v. United States, 255 F.3d 704, 707 (9th Cir. 2001). Federal courts will consider only those claims 24 that are like or reasonably related to the allegations in the charge. Stache v. International Union of 25 Bricklayers, 852 F.2d 1231, 1234 (9th Cir. 1988), cert. denied, 493 U.S. 815 (1989). Plaintiff’s 26 Charge is silent with respect to the basis for discrimination. While Plaintiff’s intake form—that is, 27 the document he completed to commence the charging process—may provide more information 1 is before the Court does not allow for a reasonable inference that Plaintiff exhausted any identifiable 2 claim of discrimination through his Charge of Discrimination.1 3 Plaintiff may be able to amend his Complaint to identify the basis for his Charge of 4 Discrimination filed with the EEOC by attaching a copy of the form he completed to commence the 5 Charge process or through sufficient factual allegations that are supported by such documentation. 6 For this reason the Court dismisses Plaintiff’s claims to the extent they are meant to state a claim of 7 discrimination without prejudice and with leave to amend. 8 IV. ORDER 9 IT IS HEREBY ORDERED that Plaintiff’s Application for Leave to Proceed In Forma 10 Pauperis (ECF No. 1) is GRANTED. Plaintiff will not be required to pay the filing fee in this action. 11 This Order granting leave to proceed in forma pauperis does not extend to the issuance of subpoenas 12 or other costs associated with discovery. 13 IT IS FURTHER ORDERED that the Clerk of the Court must file Plaintiff’s Complaint (ECF 14 No. 1-1) on the docket. 15 IT IS FURTHER ORDERED that Plaintiff’s Complaint is dismissed without prejudice, but 16 with leave to amend. If Plaintiff so chooses, he may file an amended complaint no later than 17 January 9, 2026. If Plaintiff files an amended complaint, it must be titled “AMENDED 18 COMPLAINT.” 19 Plaintiff’s amended complaint, if filed, must include all claims on which he seeks to proceed. 20 The amended complaint must include facts demonstrating in what conduct he engaged that lead to 21 his termination and how that conduct supports a wrongful termination (tortious discharge) claim. 22 Plaintiff must also identify the basis for his Charge of Discrimination—that is, what protected class 23 he identified, what conduct supports a claim of discrimination, who engaged in that conduct, and 24 how the conduct and his termination demonstrate discriminatory motive. 25
26 1 To sufficiently allege a prima facie case of discrimination in violation of Title VII to survive a § 1915 screening, Plaintiff must allege: (a) he belongs to a protected class; (b) he was qualified for the job for which he applied; (c) he was 27 subjected to an adverse employment action; and (d) similarly situated employees not in his protected class received more 1 IT IS FURTHER ORDERED that failure to timely comply with this Order will result in a 2 recommendation to dismiss this action in its entirety, without prejudice. 3 DATED this 10th day of December, 2025. 4
6 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27