1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Case No.: 2:23-cv-01845-JAD-NJK Jessica Martinez-Arriaga, 4 Plaintiff Order Granting in Part Defendants’ 5 v. Motion for Summary Judgment
6 Briggs Management LLC, et al., [ECF No. 39]
7 Defendants
8 Fat Tuesday bartender Jessica Martinez-Arriaga was fired just days after she informed 9 her employer of three years that she was pregnant.1 So she sues that employer for pregnancy 10 discrimination, hostile work environment, failure to reasonably accommodate her pregnancy, 11 wrongful termination, intentional infliction of emotional distress, and negligent infliction of 12 emotional distress.2 The employer moves for summary judgment on all her claims.3 Because 13 there is a genuine issue of material fact as to whether Martinez-Arriaga experienced pregnancy 14 discrimination and whether the employer failed to reasonably accommodate her pregnancy- 15 related needs, the employer is not entitled to summary judgment on those claims. But I grant 16 summary judgment in its favor on the other claims because Martinez-Arriaga hasn’t presented 17 sufficient evidence to establish each of their required elements. So this case proceeds to trial on 18 Martinez-Arriaga’s pregnancy-discrimination and reasonable-accommodation claims. But first, I 19 order the parties to a mandatory settlement conference with the magistrate judge. 20 21
22 1 ECF No. 1-1 at 5, ¶ 18; ECF No. 39-8 at 3 (Oct. 24–Nov. 1 email thread between Martinez- Arriaga and Danielle Garrett). 23 2 ECF No. 1-1 at 6–10, ¶¶ 26–53. 3 ECF No. 39. 1 Background 2 Briggs Management Inc. and Briggs Management LLC4 do business as Fat Tuesday, a 3 chain restaurant known for its colorful frozen cocktails. Martinez-Arriaga worked for Briggs as 4 a bartender at the Fat Tuesday inside the Miracle Mile Shops in Las Vegas, Nevada—known
5 internally as its Harmon Corner location—from March 2018 until her October 2021 6 termination.5 During that time, her schedule dwindled from five shifts per week to one, which 7 she attributes to the COVID-19 pandemic and her evolving childcare responsibilities.6 In 8 October 2021, Martinez-Arriaga was five months pregnant and working a single weekly shift.7 9 A new manager, Mike DuPont, had recently been assigned to the Harmon Corner location.8 10 Martinez-Arriaga recalls that, shortly before she was discharged, DuPont introduced 11 himself as the new general manager, saying that he had been sent by upper management to 12 “shake shit up” and “get it together.”9 At that meeting, DuPont announced that employees 13 would be expected to work three days or a certain number of hours per week, and that they were 14 expected to submit new schedules by the end of the week.10 Whether DuPont demanded 20 or
15 16
17 4 I refer to the defendants collectively as “Briggs” throughout this order. 5 ECF No. 1-1 at 5, ¶ 16. See also ECF No. 39 at 2 (specifying that Martinez-Arriaga worked at 18 the Harmon Corner location). 19 6 ECF No. 39-2 at 22:1–24:13 (dep. of Martinez-Arriaga). I cite to CM/ECF pagination for all exhibits. 20 7 ECF No. 39-8 at 3 (Oct. 24–Nov. 1 email thread between Martinez-Arriaga and Danielle Garrett); ECF No. 39-2 at 22:5–15 (testifying that she was only working on Saturday from 21 September 2021 until her termination). 22 8 ECF No. 39-2 at 11:1–6. 9 Id. at 19:20–20:3 (noting that this introduction “was probably that last Saturday that I worked 23 my regular . . . shift”). 10 Id. at 20:13–16. 1 30 hours at that initial meeting is disputed by the parties.11 Martinez-Arriaga’s charge of 2 discrimination and part of her deposition state that DuPont terminated her because she couldn’t 3 work 30 hours a week,12 but she also testified that he initially requested 20 hours.13 4 Martinez-Arriaga initially submitted her proposed schedule on Paycom, requesting three
5 shifts and a total of 20 hours.14 After learning that she might be left off DuPont’s new schedule, 6 she texted DuPont a different three-shift schedule with 24 hours per week.15 DuPont replied that 7 he had “specifically requested” that she provide a schedule sooner, and he ultimately scheduled 8 her to work just a single shift.16 Two days later, Martinez-Arriaga was called into DuPont’s 9 office for what she assumed would be a reprimand for arriving to work 15 minutes late.17 10 Instead, according to Martinez-Arriaga, DuPont unceremoniously fired her, telling her to 11 “[c]ome back after you have your baby.”18 Her version of events is that DuPont told her that she 12 was being fired because she couldn’t work 30 hours per week, a requirement that he maintained 13
14 11 See ECF No. 39 at 4 (stating that DuPont requested 20 hours and arguing that Martinez- Arriaga “vacillates between allegedly being required to work twenty or thirty hours”); see also 15 ECF No. 55 at 6–7 n.2 (dismissing Briggs’s “carp[ing]” about the hours requirement and stressing that her complaint, other pleadings, charge of discrimination, and some deposition 16 answers stated that the requirement was 30 hours). 17 12 ECF No. 39-19 at 2 (charge of discrimination); ECF No. 39-2 at 44:19–20 (Martinez-Arriaga testifying that DuPont “said that I was fired by not being able to work[] 30 hours a week”). 18 13 Id. at 20:13–14 (Martinez-Arriaga testifying that DuPont “just requested from everyone that he needed either three days of work or 20 hours”). 19 14 ECF No. 39-6 (Paycom entry screenshotted on October 24, 2021). 20 15 ECF No. 39-7 (texts between Martinez-Arriaga and DuPont on October 28, 2021); ECF No. 55-3 at 15:25–16:4 (Martinez-Arriaga testifying that she had updated her hours on Paycom four 21 days before being told by a coworker to text DuPont to get on the schedule). 22 16 ECF No. 39-7 (texts between Martinez-Arriaga and DuPont on October 28, 2021); ECF No. 55-3 at 52 (Harmon Corner employee schedule for the week of October 25 to October 31). 23 17 ECF No. 39-2 at 44:5–9. 18 Id. at 44:19–24. 1 would apply to all Harmon Corner employees.19 But Martinez-Arriaga learned the very next day 2 that DuPont was letting another bartender work just 20 hours per week,20 and several other 3 employees were scheduled to work less than 30 hours per week soon after her termination.21 4 Briggs takes the position that Martinez-Arriaga was “never officially terminated” because
5 DuPont didn’t prepare a termination form,22 but it doesn’t offer evidence contradicting her 6 account of what DuPont said in that final meeting.23 It instead suggests that DuPont verbally 7 terminated Martinez-Arriaga because of her “insubordination” in failing to immediately text him 8 a proposed schedule. As proof for this theory, Briggs points to Martinez-Arriaga’s own 9 deposition testimony, claiming that she testified that DuPont “advised [her] that she was being 10 terminated for insubordination.”24 The deposition transcript reflects no such thing. The cited 11 sentence actually reads, “[DuPont] said that I was fired by not being able to work[] 30 hours a 12 week.”25 13 An extended period of confusion followed Martinez-Arriaga and DuPont’s October 30 14 meeting. Martinez-Arriaga emailed Fat Tuesday’s Director of Human Resources, Danielle
15 Garrett, two days after that final meeting with DuPont, stating that she had been “terminated due 16 17 19 ECF No. 55-3 at 20:19–21:2. 18 20 Id. at 49. 19 21 See id. at 53–61 (Harmon Corner employee schedules for the weeks of November 1, November 8, November 15, November 22, November 29, December 6, December 20, January 3, 20 and January 10). 22 ECF No. 39 at 6. 21 23 See generally ECF No. 39. 22 24 Id. at 6. 25 ECF No. 39-2 at 44:19–20. Characterizing this testimony as Martinez-Arriaga’s confirmation 23 that she was fired for insubordination crosses the line from negligent paraphrasing to bald misrepresentation. 1 to not being able to work 30 hours a week due to pregnancy.”26 The two exchanged more emails 2 later in November, both referencing a phone conversation in which Garrett told Martinez-Arriaga 3 that she had not been terminated.27 Disjointed communication continued between Martinez- 4 Arriaga and various Fat Tuesday representatives until the summer of 2022.2829 While the parties
5 dispute who is to blame, they agree that Martinez-Arriaga never worked another shift at Fat 6 Tuesday after October 30, 2021. 7 In June 2022, Martinez-Arriaga filed a charge of discrimination with the U.S. Equal 8 Opportunity Commission (EEOC) and Nevada Equal Rights Commission (NERC), alleging that 9 DuPont had terminated her employment shortly after she informed him that she couldn’t work 10 more than 30 hours per week due to her pregnancy, while other non-pregnant employees were 11 permitted to work less than 30 hours.30 She now sues for pregnancy discrimination under 12 Nevada Revised Statutes (NRS) 613.310–345, hostile work environment, failure to reasonably 13 accommodate her pregnancy, wrongful termination, intentional infliction of emotional distress 14 (IIED), and negligent infliction of emotional distress (NIED).31 She seeks compensatory
26 ECF No. 39-8 at 2 (Oct. 24–Nov. 1 email thread between Martinez-Arriaga and Garrett). 17 27 ECF No. 39-13 (Nov. 30–Dec. 21 email thread between Martinez-Arriaga and Garrett). 18 28 See ECF Nos. 39-14 (email from Martinez-Arriaga to Marcus Filardi), 39-15 (May 6, 2022, text message from Kylee Crockett to Martinez-Arriaga), 39-16 (email from Daniella Valles to 19 Martinez-Arriaga), 39-17 (transcript of a voicemail left for Martinez-Arriaga by Valles), 39-18 (text messages between Crocket and Martinez-Arriaga). 20 29 Martinez-Arriaga objects to ECF Nos. 39-15, 39-16, and 39-17. ECF No. 55 at 25–26. But I 21 overrule those objections because they simply state rules of evidence without any supporting argument. As the Ninth Circuit reasoned in Sandoval v. County of San Diego, the failure to 22 explain “boilerplate” objections is fatal. Sandoval v. Cnty. of San Diego, 985 F.3d 657, 665 (9th Cir. 2021). 23 30 ECF No. 39-19 (charge of discrimination). 31 ECF No. 1-1 at 6–10, ¶¶ 26–53. 1 damages, interest, attorney’s fees, litigation costs, and any other relief this court may find 2 appropriate.32 3 Briggs moves for summary judgment in its favor on all of Martinez-Arriaga’s claims. It 4 avers that she can’t establish a prima facie pregnancy-discrimination claim because she hasn’t
5 shown that similarly situated non-pregnant employees were treated differently, that her hostile- 6 work-environment and failure-to-accommodate claims fail because she did not exhaust 7 administrative remedies, that her wrongful-termination claim is barred by Nevada precedent, and 8 that her IIED and NIED claims fall short because she hasn’t shown extreme and outrageous 9 conduct or any severe emotional distress.33 Martinez-Arriaga responds that she has met every 10 element of a pregnancy-discrimination claim, that she exhausted administrative remedies for her 11 hostile-work-environment and failure-to-accommodate claims, that her wrongful-termination 12 claim is distinguishable from claims barred by Nevada case law, and that evaluating the severity 13 of her emotional distress should be left to the jury.34 She also lodges more than 30 evidentiary 14 objections, though many of the pages to which she objects are not actually attached to Briggs’s
15 summary-judgment motion.35 16 Discussion 17 A. Summary-judgment standard 18 Summary judgment is appropriate when the pleadings and admissible evidence “show 19 that there is no genuine issue as to any material fact and that the movant is entitled to judgment 20 21 32 Id. at 10. 22 33 ECF No. 39 at 2. 23 34 ECF No. 55 at 2–15. 35 See id. at 21–26. 1 as a matter of law.”36 If the moving party does not bear the burden of proof on the dispositive 2 issue at trial, it is not required to produce evidence to negate the opponent’s claim—its burden is 3 merely to point out the evidence showing the absence of a genuine material factual issue.37 The 4 movant only needs to defeat one element of a claim to obtain summary judgment because “a
5 complete failure of proof concerning an essential element of the nonmoving party’s case 6 necessarily renders all other facts immaterial.”38 The court must view all facts and draw all 7 inferences in the light most favorable to the nonmoving party.39 8 B. Genuine issues of material fact preclude summary judgment on Martinez-Arriaga’s pregnancy-discrimination and failure-to-reasonably-accommodate claims, but 9 Briggs wins summary judgment on all of her other claims.
10 1. Summary judgment is not available on Martinez-Arriaga’s pregnancy- discrimination claim because whether she was treated differently from similarly 11 situated non-pregnant employees is genuinely disputed.
12 Martinez-Arriaga claims that Briggs violated NRS 613.30–.345 by discriminating against 13 her on the basis of sex and pregnancy.40 “Nevada’s anti-discrimination statute . . . is almost 14 identical to Title VII [of the 1964 Civil Rights Act], and courts apply the same analysis.”41 The 15 Supreme Court of Nevada has concluded that, like Title VII, Nevada’s prohibition on sex 16 discrimination applies to discrimination based on pregnancy.42 To allege a prima facie case of 17
36 See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56(c)). 18 37 Id. at 323. 19 38 Id. at 322. 20 39 Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). 40 ECF No. 1-6 at 5. 21 41 Complete Care Med. Ctr. v. Beckstead, 466 P.3d 538, at *1 (Nev. July 1, 2020) (unpub.) (cleaned up); see also Pope v. Motel 6, 114 P.3d 277, 280 (Nev. 2005) (noting that the Nevada 22 Supreme Court has “looked to the federal courts for guidance” when analyzing cases brought under Nevada’s anti-discrimination statutes). 23 42 Complete Care Med. Ctr., at *1 (first citing 42 U.S.C. 2000e(k) (“The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, 1 discrimination, a plaintiff must offer proof that (1) she belongs to a protected class; (2) she 2 performed her job satisfactorily; (3) she experienced an “adverse employment action;” and (4) 3 she was treated differently than a similarly situated employee who was not part of the same 4 protected class.43 If these elements are met, the burden shifts to the defendant to show a
5 “legitimate, nondiscriminatory reason” for its actions.44 If the defendant provides such a reason, 6 the burden returns to the plaintiff to show that the reason is “merely a pretext.”45 7 Briggs contends that Martinez-Arriaga’s pregnancy-discrimination claim fails at the 8 fourth element because she can’t show that similarly-situated employees who were not pregnant 9 received better treatment.46 And even if she could establish a prima facie case, it argues, there 10 was a legitimate, non-discriminatory reason for her termination: she committed 11 “insubordination” by failing to directly inform DuPont that her availability had changed.47 12 As proof of disparate treatment, Martinez-Arriaga submits Harmon Corner shift 13 schedules for the weeks following her final meeting with DuPont, which show that several 14 coworkers were granted the less-than-30-hours schedule that she was denied.48 One of those
15 16 childbirth, or related medical conditions . . .”); then citing Young v. United Parcel Serv., Inc., 17 575 U.S. 206, 210 (2015) (“Title VII’s prohibition against sex discrimination applies to discrimination based on pregnancy.”)). 18 43 Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006); City of North Las Vegas v. State Loc. Gov’t Emp.-Mgmt. Rels. Bd., 261 P.3d 1071, 1078 (Nev. 2011). 19 44 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); City of North Las Vegas, 261 20 P.3d at 1078. 45 Patraw v. Groth, 373 P.3d 949, at * 4 (Nev. Dec. 12, 2011) (unpub.); see also McDonnell 21 Douglas Corp., 411 U.S. at 804. 22 46 ECF No. 39 at 20. 47 Id. at 21; see also id. at 2 (explaining what behavior constituted insubordination). 23 48 See 55-3 at 53–61 (schedules showing that employees Holly, Jaleesa, Alexis, and Adrian were, at least some weeks, scheduled for less than 30 hours). 1 employees, Jaleesa, who apparently began working at the Harmon Corner location shortly after 2 Martinez-Arriaga was dismissed, was scheduled to work three shifts per week—exactly the 3 number of shifts that Martinez-Arriaga unsuccessfully proposed for herself.49 Martinez-Arriaga 4 also provides evidence that Dupont told her coworker Elizabeth Garner that she needed to work a
5 minimum of just 20 hours per week at around the same time he allegedly dismissed Martinez- 6 Arriaga for failing to submit at least 30 hours of availability.50 7 Two employees that Martinez-Arriaga points to as differently treated are Adrian Cross 8 and Alexis Marks.51 Briggs contends that these employees were not similarly situated.52 Citing 9 the declaration of Daniella Valles, a Briggs human-resources employee, it asserts that Cross had 10 “limited availability” to work at Harmon Corner because he was simultaneously working at other 11 Fat Tuesday locations.53 Martinez-Arriaga objects to portions of that declaration, including the 12 paragraph asserting that Cross worked at multiple locations.54 She objects as hearsay under Rule 13 801 and as “Argumentative. Misleading the jury. 403 balancing []” under Rule 403.55 She also 14 asserts without elaboration that the challenged paragraphs are “irrelevant and specifically
15 intended to mislead the trier of fact.”56 16 None of these objections has sufficient supporting arguments. As other district courts 17 within the Ninth Circuit have persuasively reasoned, “[o]bjections based on hearsay are 18
49 Id. at 44, 53–61. 19 50 ECF No. 55-3 at 49. 20 51 ECF No. 39-2 at 64:14–19. 21 52 ECF No. 39 at 20. 53 Id. at 11 (citing ECF No. 39-22 at 2). 22 54 ECF No. 55 at 26 (objecting to paragraphs 3, 4, and 5 of Valles’s declaration). 23 55 Id. 56 Id. 1 particularly context-specific,” and I am “not inclined to comb through these documents, identify 2 potential hearsay, and determine if any exception applies—all without guidance from the 3 parties.”57 As for the Rule 403 objections, there is no explanation of how the paragraphs are 4 “argumentative,” the misleading-the-jury objection is an ill fit at this stage of the litigation, and
5 the single sentence accompanying each cluster of objections does not establish that the probative 6 value of the challenged paragraphs is substantially outweighed by any of the dangers listed by 7 Rule 403.58 And to the extent that the “403 balancing” objection challenges the paragraphs’ 8 relevance, I am guided by the Ninth Circuit’s reasoning that “parties briefing summary judgment 9 motions would be better served to ‘simply argue’ the import of the facts reflected in the evidence 10 rather than expending time and resources compiling laundry lists of relevance objections.”59 So 11 I overrule Martinez-Arriaga’s objections to Valles’s declaration.60 12 Briggs also avers that Marks and Cross properly submitted updated availability to DuPont 13 and Martinez-Arriaga didn’t.61 And it insists that Martinez-Arriaga’s “insubordination” by 14 submitting her hours through Paycom rather than sending them in a text message.62 Genuine
15 disputes surround Martinez-Arriaga’s insubordination for failing to give her availability to 16 DuPont through some other method than updating her schedule in Paycom by his deadline. 17 Briggs attempts to turn this around on Martinez-Arriaga, arguing that she doesn’t recall whether 18
19 57 See, e.g., Gypsum Res., LLC v. Clark Cnty., 674 F. Supp. 3d 985, 1003 (D. Nev. 2023) (quoting De Contreras v. City of Rialto, 894 F. Supp. 2d 1238, 1245 (C.D. Cal. Sept. 2012)). 20 58 United States v. Hankey, 203 F.3d 1160, 1172 (9th Cir. 2000). 21 59 Sandoval, 985 F.3d at 665 (citation omitted). 22 60 While Martinez-Arriaga objects to various other evidentiary items, I need not and do not resolve those objections because those evidentiary items have no bearing on my rulings here. 23 61 ECF No. 39 at 11, 20. 62 Id. at 2, 21. 1 DuPont told her that she need to inform him of her availability in a particular way.63 But Briggs 2 points to no evidence that Dupont did or did not tell her that Paycom was not a viable way to 3 communicate with him before she updated her availability. The best it offers is deposition 4 testimony from DuPont’s manager Marcus Filardi, who said that DuPont complained to him that
5 Martinez-Arriaga “did not make [him] aware of her availability.”64 This isn’t enough for me to 6 conclude that Martinez-Arriaga engaged in “insubordination” by updating her schedule in 7 Paycom instead of giving those updates to DuPont directly. 8 So because Martinez-Arriaga’s “insubordination” is genuinely disputed, whether Marks 9 and Cross are differently situated because they were not insubordinate is disputed too.65 And 10 Briggs simply ignores the remaining evidence that several other employees were also allowed to 11 work less than 30 hours.66 Given the lack of clear differentiation between Martinez-Arriaga and 12 her coworkers who were given reduced hours, there is a genuine issue as to whether similarly 13 situated coworkers received better treatment than Martinez-Arriaga. So her pregnancy- 14 discrimination claim survives summary judgment.
18 19 63 Id. at 4, 20. 20 64 ECF No. 39-5 at 7:12–13. 21 65 Even if I credit Briggs’s contention that Cross isn’t similarly situated because he had different scheduling requirements due to his employment at multiple branches, that leaves several other 22 employees who may be similarly situated and differently treated. 66 Briggs briefly notes that Jaleesa was never scheduled to work on Tuesday—one of the days 23 that Martinez-Arriaga offered to work—but doesn’t explain why this distinction means the two are not similarly situated. ECF No. 39 at 11. 1 2. Briggs is entitled to summary judgment on the hostile-work-environment claim because Martinez-Arriaga hasn’t provided evidence of severe or pervasive 2 harassment. 3 Briggs argues that Martinez-Arriaga’s hostile-work-environment claim is barred because 4 she failed to exhaust her administrative remedies.67 It adds that even if she had, the claim fails 5 for lack of “verbal or physical conduct of a sexual nature.”68 Martinez-Arriaga insists that she 6 has exhausted her administrative remedies because her “hostile work environment claim based 7 on pregnancy-related conditions” is reasonably related to the pregnancy discrimination she 8 alleged in her charge of discrimination.69 And she avers that whether the defendants’ conduct 9 satisfies the elements of a hostile-work-environment claim is a question for the jury.70 10 a. Martinez-Arriaga exhausted her administrative remedies for her hostile- work-environment claim because it is reasonably related to 11 the allegations in her employment-discrimination charge. 12 Generally, litigants bringing employment-discrimination claims under Nevada law must 13 exhaust their administrative remedies before initiating a lawsuit by timely filing an employment- 14 discrimination charge with NERC before bringing a civil suit.71 A claim included in the 15 subsequent lawsuit must be “like or reasonably related” to the allegations contained in that 16 charge of discrimination.72 The Ninth Circuit has found that claims are “reasonably related to 17 18 19
20 67 ECF No. 39 at 13. 21 68 Id. at 14. 69 ECF No. 55 at 12. 22 70 Id. 23 71 Palmer v. State, 787 P.2d 803, 804 (Nev. 1990); see Pope, 114 P.3d at 280. 72 Id. at 312. 1 allegations in the charge to the extent that those claims are consistent with the plaintiff’s original 2 theory of the case.”73 3 Martinez-Arriaga’s charge of discrimination states that she suffered “unequal terms and 4 conditions of employment” and was fired after telling DuPont that she had to work less than 30
5 hours a week “due to [her] pregnancy status.”74 Her hostile-work-environment claim is based on 6 “unwelcome statements and conduct based on her availability as a result of her pregnancy- 7 related conditions.”75 The nexus of both is Briggs’s allegedly discriminatory treatment of 8 Martinez-Arriaga due to her pregnancy. So I find that the hostile-work-environment claim is 9 consistent with Martinez-Arriaga’s original theory of the case and she has thus sufficiently 10 exhausted her administrative remedies in order to now pursue it. 11 b. Martinez-Arriaga’s evidence is insufficient to establish a genuine issue of 12 hostile conduct. 13 The parties’ dispute over whether Martinez-Arriaga can establish her hostile-work- 14 environment claim begins with a disagreement about the required elements of this claim. Briggs 15 insists that “verbal or physical conduct of a sexual nature” is a necessary element of this claim 16 and that Martinez-Arriaga has no evidence of that.76 She retorts that “sexual harassment in a 17 more conventional sense” is not a required element of a hostile-work-environment claim, and 18 19 20 73 Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002) (quoting B.K.B. v. 21 Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002) abrogated on other grounds by Fort Bend Cnty., Texas v. Davis, 587 U.S. 541 (2019)). 22 74 ECF No. 39-19 at 2. 23 75 ECF No. 101 at 7, ¶ 33. 76 ECF No. 39 at 13–14. 1 that the negative treatment she experienced as a result of her pregnancy is sufficient to support 2 the claim.77 3 As with the pregnancy-discrimination analysis, I follow the Nevada Supreme Court’s 4 conclusion that courts can look to federal precedent for guidance when evaluating Nevada
5 employment-discrimination claims.78 A plaintiff must show that she was “subjected to verbal 6 or physical harassment that was sexual in nature, that the harassment was unwelcome, and that 7 the harassment was sufficiently severe or pervasive to alter the conditions of the plaintiff’s 8 employment and create an abusive work environment” to prevail on a hostile-work-environment 9 claim.79 To evaluate whether that discriminatory conduct is severe or pervasive, courts consider 10 “all the circumstances, including the frequency of the discriminatory conduct; its severity; 11 whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it 12 unreasonably interferes with an employee’s work performance.”80 “[T]he plaintiff must show 13 that her work environment was both subjectively and objectively hostile; that is, she must show 14 that she perceived her work environment to be hostile, and that a reasonable person in her
15 position would perceive it to be so.”81 And the Supreme Court of the United States has held that 16 “simple teasing, offhand comments, and isolated incidents (unless extremely serious)” aren’t 17 enough to establish an abusive work environment.82 18 19
20 77 ECF No. 55 at 12. 21 78 See supra at p. 7. 79 Dawson v. Entek Int’l, 630 F.3d 928, 937–38 (9th Cir. 2011) (cleaned up). 22 80 Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1122 (9th Cir. 2008) (cleaned up). 23 81 Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1034 (9th Cir. 2005). 82 Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (cleaned up). 1 Missing from Martinez-Arriaga’s hostile-work-environment claim is evidence that this 2 was anything but an isolated incident. Dominguez-Curry v. Nevada Transportation Department 3 offers a helpful contrast to highlight this fatal deficiency.83 In that case, a Ninth Circuit panel 4 reversed a trial court’s decision to summarily dispose of an employee’s claims for hostile work
5 environment and failure to promote on the basis of gender.84 The female employee alleged that 6 her male supervisor routinely made derogatory comments about women in their workplace, 7 including that he wished men were doing their jobs and that “women should only be in 8 subservient positions,” and complaining about the frequency at which female employees became 9 pregnant.85 His remarks included that women with young children had no business working and 10 telling the plaintiff that he planned to force an employee who had recently returned from 11 maternity leave to travel for work because “I want her out.”86 The Dominguez-Curry panel 12 concluded that the frequency of the supervisor’s “repeated derogatory and humiliating remarks” 13 made the situation more than “isolated, sporadic incidents” that would be insufficient to support 14 a hostile-work-environment claim.87
15 The record here lacks such frequency, repetition, or severity. Martinez-Arriaga claims 16 that DuPont’s poor treatment of her was not limited to telling her to come back after she had her 17 baby, but she doesn’t identify any other problematic pregnancy-related incidents.88 And her 18 deposition testimony makes clear that she doesn’t believe anyone else at Fat Tuesday 19
20 83 Dominguez-Curry, 424 F.3d 1027. 21 84 Id. at 1042. 85 Id. at 1031. 22 86 Id. at 1031–32. 23 87 Id. at 1036. 88 ECF No. 55 at 13. 1 discriminated against her based on her pregnancy—she confirmed that she never heard anyone at 2 Fat Tuesday make “any negative or derogatory comments” about gender or pregnancy.89 In an 3 email to Danielle Garrett two days after the final DuPont meeting, Martinez-Arriaga wrote that 4 DuPont “was not rude to me when terminating me . . . but he certainly spoke to me in a
5 condescending way.”90 That she would not say the interaction rose to the level of rudeness, even 6 in the immediate aftermath, supports the inference that this incident wasn’t so “extremely 7 serious” that it overcomes the Supreme Court’s presumption that an isolated incident cannot 8 establish a hostile work environment.91 So I grant summary judgment in favor of Briggs on the 9 hostile-work-environment claim. 10 3. Summary judgment is not available on Martinez-Arriaga’s failure-to- reasonably-accommodate claim because there is a genuine issue as to whether 11 she requested a reasonable pregnancy-related accommodation. 12 In her third claim for relief, Martinez-Arriaga claims that Briggs failed to reasonably 13 accommodate her pregnancy. Briggs contends that this claim, too, is barred by a failure to 14 exhaust administrative remedies.92 It argues in the alternative that summary judgment is 15 appropriate as Martinez-Arriaga never requested a pregnancy-based accommodation because she 16 merely expressed a “personal preference” to work less than 30 hours per week that “had nothing 17 to do with her pregnancy.”93 Martinez-Arriaga characterizes the administrative-exhaustion 18 argument as a “technical gotcha” and argues that any evidence that her scheduling request was 19
20 89 ECF No. 39-2 at 17. See also id. at 11 (stating that, besides feeling that human resources did not “help [her] how they should have,” she doesn’t believe that anyone but DuPont treated her 21 inappropriately). 90 ECF No. 55-3 at 87. 22 91 Faragher, 524 U.S. at 788. 23 92 ECF No. 39 at 15. 93 Id. 1 not pregnancy related simply creates a genuine dispute of material fact that must be decided by 2 the jury.94 3 a. Martinez-Arriaga exhausted her administrative remedies for her failure- to-reasonably accommodate claim because it is reasonably related to 4 the allegations in her employment-discrimination charge. 5 Martinez-Arriaga’s charge of discrimination recounts that DuPont requested that she 6 work at least 30 hours per week, she told him that she needed fewer hours due to her pregnancy, 7 and he then terminated her days later, saying that she was losing her job because she couldn’t 8 work more than 30 hours.95 Her complaint alleges that Briggs failed to reasonably accommodate 9 Martinez-Arriaga’s pregnancy by requiring her to work at least 30 hours per week and eventually 10 terminating her employment.96 The phrasing of the two documents is marginally different but 11 their narratives are fundamentally the same. So I find that Martinez-Arriaga exhausted her 12 administrative remedies for her failure-to-accommodate claim because it is reasonably related to 13 the allegations in her charge of discrimination. 14 b. Martinez-Arriaga offers sufficient evidence that she requested an 15 accommodation to establish a genuine dispute. 16 Nor is Briggs entitled to summary judgment on this failure-to-accommodate claim based 17 on a failure to request a pregnancy-related accommodation. For this argument, Briggs relies on 18 portions of Martinez-Arriaga’s deposition in which she agrees with an attorney’s statements that 19 she “never asked anyone for accommodation” and that it was her “preference” to work less than 20 30 hours per week.97 The concession that she didn’t formally ask for an “accommodation” 21 94 ECF No. 55 at 10–11. 22 95 ECF No. 39-19 at 2. 23 96 ECF No. 1-1 at 8, ¶ 38–39. 97 ECF No. 39 at 15; ECF No. 39-2 at 45, 74, 76. 1 doesn’t necessarily undermine this claim because, as a non-lawyer, Martinez-Arriaga is unlikely 2 to have a detailed understanding of what constitutes an accommodation under Nevada law. And 3 her acknowledgement that working less than 30 hours was her preference isn’t enough to 4 foreclose any reasonable juror from concluding that she requested a pregnancy-related
5 accommodation. 6 The Nevada Pregnant Workers’ Fairness Act (NPWFA) requires that “[i]f a female 7 employee requests an accommodation for a condition of the employee relating to pregnancy, 8 childbirth or a related medical condition, the employer and employee must engage in a timely, 9 good faith and interactive process to determine an effective, reasonable accommodation for the 10 employee.”98 The statute lists “a modified work schedule” as a possible reasonable 11 accommodation.99 It also prohibits employers from retaliating against employees who request or 12 use reasonable pregnancy-related accommodations.100 13 There is evidence in the record that Martinez-Arriaga asked for a pregnancy-related 14 accommodation. In emails to HR Director Danielle Garrett, Martinez-Arriaga explained that she
15 was pregnant and doing her best to accommodate the demands of “new managers” and that she 16 would have “gladly provided” DuPont with a doctor’s note explaining the pregnancy-related 17 conditions that prevented her from working 30 hours.101 And she testified that she asked Dupont 18 if she could keep her Saturday shift until going on maternity leave because she was “planning on 19 giving birth soon.”102 So whether her request to work less than 30 hours per week was a demand 20
21 98 Nev. Rev. Stat. § 613.4371. 99 Nev. Rev. Stat. § 613.4371(3)(g). 22 100 Nev. Rev. Stat. § 613.438(1)(b). 23 101 ECF No. 39-8 at 2, 3 (Oct. 24–Nov. 1 email thread between Martinez-Arriaga and Garrett). 102 ECF No. 55-3 at 17:23–18:3. 1 for a reasonable pregnancy-related accommodation under the NPWFA is a disputed question for 2 the jury to answer. 3 4. Martinez-Arriaga’s wrongful-termination claim is barred by Nevada precedent 4 because a statutory remedy is available. 5 Briggs next argues that Martinez-Arriaga’s wrongful-termination claim fails because 6 Nevada courts have rejected “tort claims premised on illegal employment actions” as there are 7 statutory claims available to redress such conduct.103 Martinez-Arriaga responds that Briggs 8 wrongly presumes that an adequate statutory remedy is available.104 And, she adds, she has 9 every right to plead alternative theories of recovery.105 10 The Nevada Supreme Court has repeatedly barred employees from bringing common-law 11 wrongful-termination claims when there is existing Nevada law “addressing the same subject 12 matter.”106 A notable example is Sands Regent v. Valgardson, in which the Court found that 13 common-law age-discrimination claims, including a wrongful-termination claim, were 14 “unsupportable” because the Nevada legislature had already enacted statutes setting the scope of
15 available remedies.107 The Court later clarified that the Sands Regent decision did not allow for 16 “additional court-created remedies . . . [to] arise out of age-based wrongful discharge for which 17 tort recovery is available by statute.”108 The Ninth Circuit has applied Sands Regent to bar 18 wrongful-termination claims, reasoning that “Nevada’s public policy against impermissible 19
103 ECF No. 39 at 19 (quoting Levy v. Mandalay Bay Corp., 2015 WL 3629633, at *3 (D. Nev. 20 June 10, 2015)). 21 104 ECF No. 55 at 15. 105 Id. 22 106 Ceballos v. NP Palace, LLC, 514 P.3d 1074, 1079 (Nev. 2022). 23 107 Sands Regent v. Valgardson, 777 P.2d 898, 900 (Nev. 1989). 108 D’Angelo v. Gardner, 819 P.2d 206, 217 n.10 (Nev. 1991). 1 discrimination cannot be vindicated through a tortious-discharge public-policy tort, but rather, 2 must be pursued through statutory remedies.”109 3 Canada v. Boyd Group, Inc., a 1992 case from another judge in this district, illustrates 4 how the Sands Regent rationale applies here and bars Martinez-Arriaga’s wrongful-termination
5 tort claim.110 In Canada, a poker dealer sued her former employer for wrongful termination and 6 related claims, all of which arose from the sexual harassment that her manager allegedly 7 subjected her to, including comments on her physical appearance and unwanted physical 8 contact.111 The judge granted summary judgment on the wrongful-termination claim, noting 9 Nevada’s “strong policy against sexual discrimination in an employment setting,” but reasoning 10 that, like in Sands Regent, there were “numerous statutory remedies available.”112 Even though 11 the plaintiff hadn’t yet received any compensation, the judge explained, “it is the availability of 12 damages that controls the outcome of this determination, not the success of the plaintiff in 13 obtaining those damages.”113 14 Martinez-Arriaga similarly has statutory remedies available for seeking damages for her
15 alleged wrongful termination. She acknowledged this in her wrongful-termination claim when 16 alleging that Briggs’s actions were “contrary to substantial and fundamental public policies 17 delineated in both state and federal laws, including but not limited to Nevada’s EEO Laws and 18 the Nevad[a] Pregnant Workers’ Fairness Act.”114 Martinez-Arriaga argues that the NPWFA 19
109 Herman v. United Bhd. of Carpenters & Joiners of Am., Local Union No. 971, 60 F.3d 1375, 20 1385 (9th Cir. 1995) (cleaned up) (citing Sands Regent, 777 P.2d at 900). 21 110 Canada v. Boyd Grp., Inc., 809 F. Supp. 771 (D. Nev. 1992). 111 Id. at 773–74. 22 112 Id. at 782. 23 113 Id. (cleaned up). 114 ECF No. 1-1 at 8, ¶ 44. 1 cannot bar her claim because its statutory text doesn’t expressly address termination of pregnant 2 employees.115 But she doesn’t deny the applicability of the “EEO Laws” that she cited in her 3 own complaint, and the NPWFA actually does address pregnancy-based termination as it 4 expressly prohibits “adverse employment action” against employees who request pregnancy-
5 related accommodations.116 The availability of these statutory remedies is enough to preclude 6 Martinez-Arriaga’s common-law wrongful-termination claim under Sands Regent and its 7 progeny. So I grant summary judgment in favor of Briggs on the wrongful-termination claim. 8 5. Briggs is entitled to summary judgment on the IIED claim because 9 Martinez-Arriaga hasn’t established extreme and outrageous conduct. 10 In her fifth cause of action, Martinez-Arriaga asserts an IIED claim. Briggs contends that 11 it’s entitled to summary judgment on this claim because the conduct here isn’t extreme and 12 outrageous.117 It also asserts that Martinez-Arriaga hasn’t experienced sufficient emotional 13 distress to support this claim, noting that she hasn’t sought help from a mental-health 14 professional or been prescribed any medications to treat her distress.118 Martinez-Arriaga’s only 15 response is that the jury should be allowed to determine whether the Briggs’s conduct was 16 outrageous and whether she suffered severe emotional distress.119 17 The Nevada Supreme Court has held that “the tort of intentional infliction of emotional 18 distress is recognizable in the employment termination context.”120 To prove such an IIED 19
115 ECF No. 55 at 14. 20 116 See Nev. Rev. Stat. § 613.438(1)(b) (specifying that the list of adverse employment actions is 21 not exhaustive). 117 ECF No. 39 at 17. 22 118 Id. 23 119 ECF No. 55 at 15. 120 Shoen v. Amerco, Inc., 896 P.2d 469, 476 (Nev. 1995). 1 claim, a plaintiff must show “(1) extreme and outrageous conduct with either the intention of, or 2 reckless disregard for, causing emotional distress, (2) [that she] suffered severe or extreme 3 emotional distress and (3) actual or proximate causation.”121 To meet the first prong, the 4 challenged conduct must be “beyond the bounds of decency” and “utterly intolerable in a
5 civilized community.”122 “[M]ere insults, indignities, threats, annoyances, petty oppressions, or 6 other trivialities” are insufficient to establish IIED.123 7 Martinez-Arriaga’s IIED claim fails at the outrageous-conduct prong. She alleges that 8 the defendants’ conduct “was extreme and outrageous with the intention of, or reckless disregard 9 for, causing emotional distress,” but she doesn’t explain why or how,124 and her opposition to 10 summary judgment offers little clarity.125 The exhibits she attaches to her opposition show that 11 DuPont introduced himself, saying he was there to “shake shit up,”126 that they then exchanged 12 brief texts about scheduling,127 and, in their final meeting, DuPont terminated her employment, 13 saying “[c]ome back after you have your baby.”128 Martinez-Arriaga stated to NERC that she 14 and DuPont did not have multiple meetings to discuss her schedule, only that “single top-down
15 discussion.”129 She described DuPont’s behavior in the termination meeting as “condescending” 16
17 121 Id. 122 Abrams v. Sanson, 458 P.3d 1062, 1069 (Nev. 2020); Maduike v. Agency Rent-A-Car, 953 18 P.2d 24, 26 (Nev. 1998). 19 123 Candelore v. Clark Cnty. Sanitation Dist., 975 F.2d 588, 591 (9th Cir. 1992) (per curiam) (citation omitted). 20 124 ECF No. 1-1 at 9, ¶ 48. 21 125 See ECF No. 55 at 15. 126 ECF No. 55-3 at 6–7. 22 127 Id. at 48. 23 128 Id. at 17, 20. 129 Id. at 38. 1 but “not rude” shortly after the meeting.130 When later asked what DuPont had said or done to 2 be condescending, she said “[j]ust his demeanor.”131 3 These details fall far short of extreme and outrageous conduct. And without extreme and 4 outrageous conduct, Martinez-Arriaga cannot support her IIED claim. So I grant summary
5 judgment in favor of Briggs on this claim. 6 6. Martinez-Arriaga hasn’t provided evidence of physical impact or serious emotional distress, so summary judgment is also appropriate on her NIED 7 claim. 8 Martinez-Arriaga’s sixth and final claim is for NIED. Briggs argues that this claim fails 9 because she hasn’t alleged any physical symptoms or established that she actually suffered 10 severe emotional distress.132 Once again, Martinez-Arriaga’s only rejoinder is that the severity 11 of her emotional distress should be determined by a jury.133 12 An NIED claim by a direct victim under Nevada law has the same elements as an IIED 13 claim, “except that the plaintiff need only show that the acts causing distress were committed 14 negligently.”134 So a direct-victim NIED claim requires negligence by the defendant, “severe or 15 extreme emotional distress” suffered by the plaintiff, and actual or proximate causation.135 “For 16 NIED claims brought for negligent actions committed directly against a plaintiff, ‘either a 17 18 19
20 130 Id. at 87. 21 131 Id. at 22. 132 ECF No. 39 at 18. 22 133 ECF No. 55 at 15. 23 134 Armstrong v. Reynolds, 22 F.4th 1058, 1081 (9th Cir. 2022). 135 Shoen, 896 P.2d at 476; see also Armstrong, 22 F.4th at 1082. 1 physical impact must have occurred or . . . proof of serious emotional distress causing physical 2 injury or illness must be presented.’”136 3 Martinez-Arriaga’s alleged harms don’t include physical injury.137 And while her 4 complaint states that her emotional distress “is manifested by the physical symptoms of severe
5 panic attacks and anxiety,”138 her opposition to the motion for summary judgment offers no 6 evidence of those physical symptoms.139 Because Martinez-Arriaga has failed to support this 7 required element of her NIED claim, I grant summary judgment on it in favor of Briggs. 8 C. Martinez-Arriaga’s request for leave to amend fails for a multitude of reasons. 9 In the final sentence of her opposition to summary judgment, Martinez-Arriaga argues 10 that she “should be granted leave to amend her causes of action if the Court finds any 11 deficiencies.”140 At summary judgment, this is not a thing. The Ninth Circuit has noted that “[a] 12 motion for leave to amend is not a vehicle to circumvent summary judgment.”141 But even if it 13 could be, it’s too late for amendment now. The parties’ agreed-upon February 7, 2024, deadline 14 to file motions to amend pleadings has long since passed.142 This offhand amendment request is
15 also procedurally improper because Martinez-Arriaga didn’t file a separate motion for leave to 16 amend as required by Local Rule IC 2-2(b),143 nor has she provided a proposed amended 17
136 Id. (quoting Barmettler v. Reno Air, Inc., 956 P.2d 1382, 1387 (Nev. 1998)). 18 137 See generally ECF No. 1-1 (complaint), ECF No. 39-19 (charge of discrimination), ECF No. 19 55 (opposition to motion for summary judgment). 138 ECF No. 1-1 at 10, ¶ 53. 20 139 See ECF No. 55 at 15. 21 140 Id. at 27. 22 141 Schlacter-Jones v. Gen. Tel. of California, 936 F.2d 435, 443 (9th Cir. 1991), abrogated on other grounds by Cramer v. Consol. Freightways Inc., 255 F.3d 683 (9th Cir. 2001). 23 142 ECF No. 24 at 7. 143 L.R. IC 2-2(b). 1|| complaint as required by Local Rule 15-1.'44 Any of these reasons is enough alone to deny leave amend. Together they compel a resounding no. Leave to amend is denied. 3 Conclusion 4 IT IS THEREFORE ORDERED that Briggs Management LLC and Briggs Management 5|| Inc.’s motion for summary judgment [ECF No. 39] is GRANTED in part and DENIED in 6|| part: it is granted as to plaintiff Jessica Martinez-Arriaga’s claims for hostile work environment, wrongful termination, intentional infliction of emotional distress, and negligent infliction of emotional distress; it is denied in all other respects. So this case proceeds to trial on Martinez- Arriaga’s claims for pregnancy discrimination and failure to reasonably accommodate 10] only. 11 IT IS FURTHER ORDERED that this case is REFERRED to the magistrate judge to schedule a MANDATORY SETTLEMENT CONFERENCE. The parties’ obligation to file 13]| their joint pretrial order is STAYED until 10 days after that settlement conference. 14
US. District Fudge Jennifer A. Dorsey 16 March 14, 2025 17 18 19 20 21 22 23 TR. 15-1(a). 25