McCoy v. Clark County

• Court: District Court, D. Nevada
• Decided: March 8, 2021
• Docket: 2:20-cv-01331
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 SHANTEL McCOY, an individual, Case No. 2:20-cv-01331-KJD-NJK

8 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL DISMISSAL 9 v.

10 CLARK COUNTY, a political subdivision; DOES 1 through 10; ROE ENTITIES 11 11 through 20, inclusive jointly and severally,

12 Defendants.

13 Before the Court is Defendant’s Motion for Partial Dismissal of Plaintiff’s Complaint 14 (ECF #5). Plaintiff did not respond, and Defendant filed a Notice of Non-opposition (ECF #7). 15 I. Factual and Procedural Background 16 Plaintiff Shantel McCoy (“McCoy”) filed the instant action against her employer 17 Defendant Clark County in state court in June 2020. (ECF #5, at 2). Clark County then removed 18 the action to this Court. Id. According to the complaint, McCoy requested time off under the 19 Family and Medical Leave Act (“FMLA”) from February 2019 through October 2019. Id. 20 McCoy alleges that Clark County harassed and retaliated against her for taking FMLA leave. Id. 21 Around October 2019, the hostility and mistreatment became so severe that McCoy was 22 constructively terminated. Id. McCoy alleges that one of her supervisors interfered with her 23 FMLA leave by leaving work in her queue, assigning her new work while she was out, failing to 24 assign work to other employees, and demanding that her work be done immediately upon her 25 return. (ECF #1-1, at 4). McCoy asserts that she is entitled to lost wages, lost pension benefits, 26 and lost vacation and sick pay. Id. The complaint lists three causes of action: FMLA interference, 27 violation of 42 U.S.C. § 1983, and wrongful termination. Id. at 5–9. 28 Clark County filed a motion for partial dismissal, arguing that McCoy’s third cause of 1 action must be dismissed because Nevada law does not recognize an action for wrongful 2 termination when a plaintiff has an adequate statutory remedy. (ECF #5, at 4). Clark County 3 argues that wrongful termination is a tort designed to fill a gap when no statutory remedy is 4 available, and that McCoy has a statutory remedy through the FMLA because her claim is based 5 on Clark County’s FMLA violation. Id. at 5. McCoy did not respond to the motion. 6 II. Legal Standard 7 Under Rule 8, a pleading must contain “a short and plain statement of the claim showing 8 that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). A complaint does not require 9 “detailed factual allegations,” but “requires more than labels and conclusions, and a formulaic 10 recitation of the elements of a cause of action will not do.” Bell Atlantic Co. v. Twombly, 550 11 U.S. 544, 555 (2007). “To survive a motion to dismiss, a complaint must contain sufficient 12 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 13 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). All “[f]actual 14 allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 15 U.S. at 555. While the court “must take all of the factual allegations in the complaint as true, we 16 ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’” Iqbal, 556 17 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “When the claims in a complaint have not 18 crossed the line from conceivable to plausible, the complaint must be dismissed.” Hendon v. 19 Geico Ins. Agency, 377 F.Supp.3d 1194, 1196 (D. Nev. 2019). Local rules state that a party’s 20 failure to respond to a motion to dismiss constitutes a consent to the granting of the motion. See 21 LR 7-2(d). 22 III. Analysis 23 Clark County argues that Nevada does not permit a wrongful termination claim when a 24 plaintiff has an adequate statutory remedy. Indeed, a court will consider two requirements when 25 analyzing a wrongful termination claim: “(1) whether the employer violated strong and 26 compelling Nevada public policy, and (2) . . . whether there is an adequate statutory remedy.” 27 Errico v. Fed-Ex Freight, Inc., No. 2:10-cv-01872-RLH, 2011 WL 1770861, at *3 (D. Nev. May 28 9, 2011). McCoy’s complaint alleges violations of the FMLA and all of her causes of action are 1 related to those violations. The FMLA provides a statutory remedy. As such, the Court finds that 2 McCoy has an adequate statutory remedy with her FMLA claim and her wrongful termination 3 claim must be dismissed. 4 “An employer commits a wrongful termination (primarily known in Nevada 5 jurisprudence as tortious discharge) ‘by terminating an employee for reasons [that] violate public 6 policy.’” Sanders v. Sodexo, Inc., No. 2:15-cv-00371-JAD-GWF, 2015 WL 4477697, at *3 (D. 7 Nev. July 20, 2015) (quoting D’Angelo v. Gardner, 819 P.2d 206, 212 (Nev. 1991)). Public 8 policy may be violated when an employee is terminated for “(1) refusing to violate the law, (2) 9 performing jury duty, (3) filing a workers’ compensation claim or seeking industrial insurance, 10 (4) refusing to work in unreasonable and dangerous conditions, and (5) whistle blowing.” Id. 11 (internal citations omitted). McCoy’s case is analogous to the Sanders case which did not “fall 12 into any of these recognized public-policy exceptions.” Id. Instead, McCoy’s claim arises from 13 her FMLA allegations. Like the plaintiff in Sanders, McCoy has “a statutory vehicle for [her] 14 wrongful-termination allegations: an FMLA claim.” Id. at 4. McCoy’s complaint is replete with 15 references to Clark County’s FMLA violations. There is a section outlining the FMLA 16 violations, the section outlining civil rights violations focuses on FMLA violations, and the 17 wrongful termination cause of action, which re-alleges the previous allegations of FMLA 18 violations, begins by stating the “Plaintiff exercised her right to FMLA leave.” According to the 19 complaint, all of McCoy’s causes of action arise from Clark County’s alleged FMLA violations. 20 The FMLA provides an adequate statutory remedy that allows a plaintiff to recover 21 “damages equal to the amount of any wages, salary, employment benefits, or other compensation 22 denied or lost to such employee by reason of the violation.” 29 U.S.C. § 2617(a)(1)(A)(i)(I). The 23 statute also permits recovery of interest, liquidated damages, and equitable relief. Id. at 24 § 2617(a)(1). McCoy will be able to recover for her alleged damages under the FMLA. Plaintiffs 25 are only entitled to pursue an action for wrongful termination against an employer when “no 26 comprehensive statutory or other tort remedy [is] available to compensate” them. Gardner, 819 27 P.2d at 218. McCoy has such a statutory remedy available to her. 28 Because McCoy has a statutory remedy available to her and she consents to the granting of Clark County’s motion, McCoy’s third cause of action for wrongful termination is dismissed. 2 TV. Conclusion 3 Accordingly, IT IS HEREBY ORDERED that Defendant’s Motion for Partial Dismissal 4| (ECF #5) is GRANTED. 5 | Dated this 8th day of March, 2021. Lao Kent J. Dawson 8 United States District Judge 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

-4-