Pastore v. Callister Law, PLLC

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 * * *

9 SARA B. PASTORE, Case No. 2:20-cv-01959-RFB-EJY

10 Plaintiff, ORDER 11 v.

13 CALLISTER LAW, PLLC, JONATHAN C. CALLISTER, Esq., 14 Defendants. 15 16 Before the Court for consideration are the Reports and Recommendations of the Honorable 17 Elayna J. Youchah, United States Magistrate Judge, ECF Nos. 5 and 11, as well as Plaintiff’s 18 Objection to the Report and Recommendation, ECF No. 12. 19 A district court “may accept, reject, or modify, in whole or in part, the findings or 20 recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). A party may file specific 21 written objections to the findings and recommendations of a magistrate judge. 28 U.S.C. § 22 636(b)(1); Local Rule IB 3-2(a). When written objections have been filed, the district court is 23 required to “make a de novo determination of those portions of the report or specified proposed 24 findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Local 25 Rule IB 3-2(b). 26 Plaintiff brings a series of claims against her employer, Callister Law, PLLC and Johnathan 27 Callister, alleging a violation of the Age Discrimination in Employment Act (“ADEA”). Judge 28 Youchah recommended that Plaintiff’s Amended Complaint be dismissed with prejudice for two 1 reasons: (1) Plaintiff did not allege that her employer employed more than 20 employees pursuant 2 to the requirement under 29 U.S.C. § 630(b) and (2) Plaintiff’s complaint was not timely filed 3 pursuant the ADEA’s 90-day statute of limitations. See ECF No. 11. Plaintiff objects, arguing that 4 the statute of limitations should be tolled because the EEOC failed to give Plaintiff adequate notice 5 and because, even though Plaintiff’s employer only had three employees including Plaintiff, recent 6 case law obviated the ADEA’s numerosity requirement. See ECF No. 12. 7 Upon review of the Report and Recommendation, the Court agrees with Judge Youchah’s 8 conclusion that because Plaintiff cannot allege or ultimately prove that her employer employed 9 “twenty or more employees for each working day in each of the twenty or more calendar weeks…” 10 29 U.S.C. § 630(b). The threshold number of employees for application of Title VII is a required 11 element of plaintiff’s claim for relief. See Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006). 12 Plaintiff failed to allege and then conceded that her employer does not meet this requirement. See 13 ECF No. 12. (“Since the plaintiff worked for Callister Law, PLLC who had only 3 employees 14 including herself, she would not meet the requirement under 29 U.S.C. § 630(b).”). The recent 15 case law referenced by Plaintiff does not obviate the ADEA’s numerosity requirement in this 16 context. See Mount Lemmon Fire Dist. v. Guido, 139 S. Ct. 22 (2018) (holding that that state and 17 local governments were “employers” covered by the ADEA regardless of their size); Arbaugh, 18 546 U.S. 500 (holding that the numerosity requirement was not jurisdictional, but rather a required 19 element of an ADEA claim). Because Plaintiff must establish that her employer employed at least 20 twenty employees for the statute to apply to her claim and she cannot, Plaintiff’s claim is properly 21 dismissed. 22 Plaintiff also objects to the Report and Recommendation on the grounds that the 23 circumstances of the EEOC’s investigation should entitle her to equitably toll her claims. Because 24 Plaintiff’s failure to establish the numerosity element is dispositive of her ADEA claim, the Court 25 does not reach the issues of timeliness or equitable tolling in this case. 26 / / / 27 / / / 28 / / / 1 IT IS THEREFORE ORDERED that the Report and Recommendation [ECF No. 11] is 2 ACCEPTED and ADOPTED in full. 3 IT IS FURTHER ORDERED that the Report and Recommendation [ECF No. 5] is 4 DENIED as moot. 5 IT IS FURTHER ORDERED that Plaintiff’s amended complaint is dismissed with 6 prejudice as there is no amendment that will establish the necessary elements for Plaintiff’s ADEA 7 claim. 8 The Clerk of the Court is directed to close this case.

10 DATED: May 16, 2022. _____________________________ 11 RICHARD F. BOULWARE, II 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28