Simmons v. Nevada System of Higher Education

• Court: District Court, D. Nevada
• Decided: February 6, 2020
• Docket: 3:19-cv-00382
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT

7 DISTRICT OF NEVADA

8 * * * 9 KYLE SIMMONS, Case No. 3:19-cv-00382-LRH-CLB

10 Plaintiff, ORDER

11 v.

12 NEVADA SYSTEM OF HIGHER EDUCATION, and THE BOARD OF 13 REGENTS OF THE NEVADA SYSTEM OF HIGHER EDUCATION, and TRUCKEE 14 MEADOWS COMMUNITY COLLEGE, and DOES I-X, inclusive, 15 Defendants. 16 17 18 Defendants, Nevada System of Higher Education (“NSHE”), the Board of Regents of the 19 Nevada System of Higher Education (“the Board”), and Truckee Meadows Community College 20 (“TMCC”), (collectively “defendants”), move this court to dismiss plaintiff’s complaint in its 21 entirety. ECF No. 14. Plaintiff, Kyle Simmons, opposed the motion (ECF No. 24), to which 22 defendants replied (ECF No. 25). First, because plaintiff and defendants agree that TMCC should 23 be dismissed, the court grants defendants’ motion to do so. Second, because the plaintiff has failed 24 to allege facts to support his Title VII claim, the court grants defendants’ motion to dismiss 25 plaintiff’s first cause of action. Finally, because NSHE and the Board are state entities immune 26 from suit under the Eleventh Amendment, the court grants defendants’ motion to dismiss 27 plaintiff’s state law claims—causes of action two through five. 1 I. BACKGROUND 2 In 2014, Simmons was hired as a “full time, tenure track” Humanities professor at TMCC. 3 ECF No. 1 ¶¶ 8-9. His first year teaching (the 2014-2015 school year), Simmons received an 4 “Outstanding” overall ranking on his two Tenure Probation Reports, and an “Excellent 2” ranking 5 (the highest possible ranking for a Humanities professor) on his Annual Performance Evaluation. 6 Id. ¶¶ 10-13. His contract was renewed for a second year of teaching (2015-2016), during which 7 he again received an “Outstanding” overall ranking on his two Tenure Probation Reports, and an 8 “Excellent 2” ranking on his Annual Performance Evaluation. Id. ¶¶ 14-18. His contract was 9 renewed for a third year of teaching (2016-2017), and he again received an “Outstanding” overall 10 ranking on his two Tenure Probation Reports, and an “Excellent 2” ranking on his Annual 11 Performance Evaluation. Id. ¶¶ 19-23. Simmons contract was then renewed for a fourth year of 12 teaching (2017-2018). Id. ¶ 24. 13 During a mandatory faculty meeting on August 17, 2017, Simmons alleges that he was 14 “grabbed and pulled against his will by TMCC Vice President Marie [Murgolo]” while she 15 attempted to get him to dance. Id. ¶¶ 26, 28. Believing this conduct to be sexual harassment, 16 Simmons filed a complaint against her with the TMCC Human Resources Office on August 23, 17 2017. Id. ¶¶ 27-28. Human Resources closed this complaint on August 31, 2017. Id. ¶ 29. 18 Plaintiff alleges that he was again sexually harassed on September 22, 2017, when TMCC 19 Human Resources Director Veronica Fox, “approached him while he was talking to a colleague 20 . . ., came between him and the colleague, stood very close to him, and touched him in a manner 21 which made him feel very uncomfortable, and asked him if he needed anything.” Id. ¶ 30. On 22 September 30, 2017, plaintiff filed a sexual harassment claim against Director Fox and Vice 23 President Murgolo. Id. ¶ 31. The Human Resources Office opened an investigation on October 5, 24 2017. Id. ¶ 36. Plaintiff was informed by Human Resources on November 9, 2017, that TMCC 25 President Karin Hilgersom had closed the investigation. Id. ¶ 45. 26 On October 2, 2017, Dean Jill Channing performed a “Classroom Observation” of 27 Simmons, ranking his performance “Outstanding” overall, which included 5 “Outstanding” marks, 1 “Satisfactory” on any prior TMCC classroom observation evaluation. Id. ¶ 33. Simmons provided 2 comments to Dean Channing regarding this mark on October 12, 2017, and met with her on 3 October 13, 2017. Id. ¶¶ 37-38. Plaintiff alleges that during this meeting, Dean Channing 4 “promised” she would sign his “Tenure Probation Report for his Tenure Binder.” Id. ¶ 39. 5 Professor Lindsay Wilson performed a “Classroom Evaluation” on October 4, 2017, and 6 gave Simmons all “Outstanding” marks. Id. ¶ 34. On October 4, 2017, Simmons was also given 7 his Tenure Probation Report, on which he received an “Outstanding” rank, was rated “Excellent” 8 by his Tenure Committee, and recommended for tenure. Id. ¶¶ 35, 40. 9 On October 31, 2017, Dean Channing informed plaintiff that she could not sign his Tenure 10 Probation Report, and on December 1, 2017, denied his tenure application, “thereby 11 recommending that plaintiff Simmons be denied tenure” by DSHE and TMCC. Id. ¶¶ 44, 46. 12 Plaintiff alleges that pursuant to the collective bargaining agreement, if Dean Channing had 13 concerns about plaintiff, she was required to “‘document and notify the Tenure Committee Chair 14 and the tenure-track candidate in writing in a timely and appropriate manner regarding the nature 15 of the perceived deficiencies or other concerns.’” Id. ¶ 47. Plaintiff alleges that Dean Channing 16 failed to do so. Id. ¶ 48. 17 On January 4, 2018, plaintiff was informed by letter from President Hilgersom that his 18 tenure application had been denied “based on the recommendation of Dean Jill Channing.” Id. ¶49. 19 Upon receiving this letter, plaintiff requested President Hilgersom and Dean Channing recuse 20 themselves from deciding his tenure application because of the roles they had concerning the 21 sexual harassment complaints he had filed. Id. ¶50. 22 On January 9, 2018, plaintiff was informed that his contract would not be renewed and that 23 he would be “laid off/ discharged” on January 8, 2019. Id. ¶51. On this same day, President 24 Hilgersom informed plaintiff he would no longer be teaching in the classroom but would be “given 25 special assignments” to conduct at his home. Id. ¶ 52. Plaintiff alleges that this change in 26 assignment violated Article 4, Section 4.3(2) of the collective bargaining agreement. Id. ¶ 53. On 27 January 11, 2018, President Hilgerson informed plaintiff that she would not be recusing herself 1 On February 26, 2018, plaintiff filed a grievance pursuant to the collective bargaining 2 agreement, alleging that President Helgersom and Dean Channing violated Articles 2 and 4.3 of 3 the collective bargaining agreement. Id. ¶ 56. Plaintiff filed 2 additional grievances with TMCC 4 pursuant to the collective bargaining agreement—one on March 12, 2018, and the other on June 5 27, 2018—and on June 29, 2018, sent NSHE Chancellor Thom Reilly an email regarding these 6 grievances with TMCC, which was not entertained. Id. ¶¶ 58-60.1 7 Plaintiff then filed 4 complaints with the TMCC Human Resources Office: (1) on July 16, 8 2018, alleging retaliation for making his sexual harassment claims; (2) on August 6, 2018, alleging 9 discrimination; (3) on August 27, 2018, alleging Title IX retaliation/ discrimination; and (4) on 10 August 28, 2018, alleging Title IX retaliation and discrimination. Id. ¶¶ 61, 63, 64-65. Plaintiff 11 filed a charge with the United States Equal Employment Opportunity Commission (“EEOC”) and 12 the Nevada Equal Rights Commission (“NERC”) on October 12, 2018. Id. ¶ 66(1).2 Simmons was 13 ultimately discharged from his employment on January 11, 2019. Id. ¶ 66(2). 14 Simmons received a “Notice of Right to Sue” from the EEOC on April 15, 2019 (dated 15 April 9, 2019), and filed the at issue Complaint on July 5, 2019. Id. ¶ 67. Simmons alleges five 16 causes of action in his Complaint: (1) violation Title VII of the Civil Rights Act, 42 U.S.C. 17 § 2000e, et seq., as amended, for discrimination based on gender and retaliation based on 18 allegations of sexual harassment; (2) breach of employment contract; (3) breach of the covenant 19 of good faith and fair dealing existing in plaintiff’s employment contract; (4) breach of contract 20 between defendant and TMCC-NFA, (breach of the collective bargaining agreement); and (5) 21 breach of the covenant of good faith and fair dealing contained within the collective bargaining 22 agreement which covered plaintiff’s position as a Professor of Humanities at TMCC. See id. 23 /// 24 /// 25 ///

26 1 Plaintiff’s Complaint includes a typographical error: beginning on page 13, paragraph 59 is listed twice. 27 Therefore, the court’s citation here includes both the first and second paragraph 59. 1 II. LEGAL STANDARD 2 Motion to Dismiss Pursuant to Federal Civil Procedure Rule 12(b)(6) 3 A party may seek the dismissal of a complaint under Federal Rule of Civil Procedure 4 12(b)(6) for failure to state a legally cognizable cause of action. See FED. R. CIV. P. 12(b)(6) 5 (stating that a party may file a motion to dismiss for “failure to state a claim upon which relief can 6 be granted[.]”). To survive a motion to dismiss for failure to state a claim, a complaint must satisfy 7 the notice pleading standard of Federal Rule 8(a). See Mendiondo v. Centinela Hosp. Med. Ctr., 8 521 F.3d 1097, 1103 (9th Cir. 2008). Under Rule 8(a)(2), a complaint must contain “a short and 9 plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). 10 Rule 8(a)(2) does not require detailed factual allegations; however, a pleading that offers only 11 “‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’” is 12 insufficient and fails to meet this broad pleading standard. Ashcroft v. Iqbal, 556 U.S. 662, 678 13 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 14 To sufficiently allege a claim under Rule 8(a)(2), viewed within the context of a 15 Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as 16 true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 17 570). A claim has facial plausibility when the pleaded factual content allows the court to draw the 18 reasonable inference, based on the court’s judicial experience and common sense, that the 19 defendant is liable for the alleged misconduct. See id. at 678-679 (stating that “[t]he plausibility 20 standard is not akin to a probability requirement, but it asks for more than a sheer possibility that 21 a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with 22 a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement 23 to relief.” (internal quotation marks and citations omitted)). Further, in reviewing a motion to 24 dismiss, the court accepts the factual allegations in the complaint as true. Id. However, “bare 25 assertions” in a complaint amounting “to nothing more than a ‘formulaic recitation of the 26 elements’” of a claim are not entitled to an assumption of truth. Id. at 680-81 (quoting Twombly, 27 550 U.S. at 555). The court discounts these allegations because “they do nothing more than state 1 Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). “In sum, for a complaint to survive a motion to 2 dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that content, must 3 be plausibly suggestive of a claim entitling the plaintiff to relief.” Id. 4 III. DISCUSSION 5 A. Plaintiff’s motion to amend his Complaint at paragraph 4 is granted. 6 Plaintiff found a typographical error in his Complaint and in conjunction with his 7 Response, moved the court to allow him to amend paragraph 4 to correct this error.3 ECF No. 24. 8 In paragraph 4 of the Complaint, the plaintiff referenced “28 U.S.C. § 1337,” when he meant to 9 reference “28 U.S.C. § 1367.” The rest of paragraph 4 refers to supplemental jurisdiction, which 10 is properly referenced as 28 U.S.C. § 1367. In defendants’ motion to dismiss, they discuss 11 plaintiff’s second through fifth causes of action as “supplemental state claims brought pursuant to 12 28 U.S.C. § 1367.” ECF No. 14 at 12. Therefore, such a typographical error does not appear 13 prejudicial to either party. Seeing good cause to allow plaintiff to amend his Complaint, the court 14 grants plaintiff’s motion. 15 B. TMCC is dismissed from the suit. 16 Defendants argue that because TMCC is not a legal entity, only a community college 17 operated by NSHE, it is not a proper party and must be dismissed. Plaintiff does not object to 18 dismissing TMCC from the suit; therefore, defendants’ motion is granted.

19 C. Defendants’ motion to dismiss plaintiff’s first cause of action, violations of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2, for discrimination based on gender and 20 retaliation based on his allegations of sexual harassment,4 is granted.

21 i. The court declines to rule at this stage on the timeliness of the EEOC charge or whether plaintiff properly exhausted his administrative remedies. 22 23 Pursuant to 42 U.S.C. § 2000e-5(e)(1), “a Title VII plaintiff must file an administrative 24 charge with the EEOC within 180 days of the last act of discrimination.” MacDonald v. Grace 25 Church Seattle, 457 F.3d 1079, 1081-82 (9th Cir. 2006). “However, if the claimant first ‘institutes

26 3 While this is not the proper procedure for filing a motion to amend a Complaint, see LR 2-2(b) and LR 27 15-1, the court will allow it here. 1 proceedings’ with a state agency that enforces its own discrimination laws—a so called ‘deferral’ 2 state—then the period for filing claims with the EEOC is extended to 300 days.” Laquaglia v. Rio 3 Hotels & Casino, Inc., 186 F.3d 1172, 1174 (9th Cir. 199). Nevada is such a deferral state, and the 4 parties agree that 300-days is the proper limitations period. See id. 5 Plaintiff alleges that he simultaneously filed his charge with NERC and the EEOC on 6 October 12, 2018. ECF No. 1. ¶66(1). Defendants argue that plaintiff has alleged two distinct acts 7 of sexual harassment: one occurring on August 17, 2017, and the other occurring on September 8 22, 2017. Therefore, under the 300-day rule, plaintiff must have filed his EEOC charge for the 9 August incident by June 13, 2018, and by July 19, 2018, for the September incident. Since 10 plaintiff’s EEOC charge was filed almost 3 months after the latest deadline, defendant argues that 11 plaintiff’s EEOC charge is untimely. Plaintiff argues that his charge was timely because he marked 12 “Continuous Action,” thereby, alleging conduct that occurred within the 300-day period (after 13 December 15, 2017). 14 Plaintiff did not attach the charge to his Complaint. Plaintiff does refer to the EEOC charge 15 in paragraphs 66(1) and 67 of his Complaint, in which he alleges that he filed the charge, the date 16 on which the charge was filed, and the date he received his Notice of Right to Sue letter. ECF 17 No. 1 at 15. Defendants then attached the charge to their motion to dismiss as Exhibit 2. See ECF 18 No. 14-1, Ex. 2. If the court were to consider “evidence outside the pleadings, it must normally 19 convert the 12(b)(6) motion to a Rule 56 motion for summary judgment, and must give the 20 nonmoving party an opportunity to respond.” United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 21 2003). Certain materials may be considered without converting the motion, including, “documents 22 attached to the complaint, documents incorporated by reference in the complaint, or matters of 23 judicial notice.” Id. at 908. 24 Here, defendants did not request the court take judicial notice of the charge, and it was 25 clearly not attached to plaintiff’s Complaint. While the charge is referenced in the Complaint, the 26 court does not find it has been incorporated by reference, such that the court can properly rely on 27 the charge without converting the instant motion to one for summary judgment. See id. (documents 1 document or the document forms the basis of the plaintiff’s complaint.”). Without the charge itself, 2 the court cannot properly make a timeliness determination at this stage, and therefore, denies 3 defendants’ motion to dismiss on this ground. 4 Likewise, defendants’ argument that the court should not consider plaintiff’s September 5 2017 allegation of sexual harassment because it was not contained in the charge is similarly 6 improper at this stage. Generally, for the court to have subject matter jurisdiction over plaintiff’s 7 Title VII claims, the plaintiff must have exhausted his EEOC administrative remedies prior to 8 bringing the claim in federal court. E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994). 9 However, while “failure to file an EEOC complaint is not a complete bar to district court 10 jurisdiction, . . . [t]he jurisdictional scope of the plaintiff’s court action depends on the scope of 11 the EEOC charge and investigation.” Leong v. Potter, 347 F.3d 1117, 1122 (9th Cir. 2003). The 12 district court will still have “jurisdiction over any charges of discrimination that are ‘like or 13 reasonably related to’ the allegations made before the EEOC, as well as charges that are within the 14 scope of an EEOC investigation that reasonably could be expected to grow out of the allegations.” 15 Id. (quoting Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990)). In order to make such a 16 determination, the court must review the charge itself. Therefore, because the charge is not 17 properly before the court at this time, defendants’ motion to dismiss on this ground is denied.

18 ii. The court grants defendants’ motion to dismiss plaintiff’s claim for retaliation because plaintiff fails to make a prima facie showing. 19 20 Under Title VII:

21 It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful 22 employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing 23 under this subchapter. 24 42 U.S.C. § 2000e-3(a) (emphasis added). To establish a prima facie case of retaliation, a plaintiff 25 must show (1) that he engaged in a protected activity, (2) that he subsequently experienced an 26 adverse employment action, and (3) that a causal link exists between the two. Brooks v. City of 27 San Mateo, 229 F.3d 917, 928 (9th Cir. 2000) (citing Payne v. Norwest Corp., 113 F.3d 1079, 1 causation test stated in § 2000e-2(m).” Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 570 U.S. 2 338, 360 (2013). 3 Opposition to an unlawful employment practice is a protected activity if it “refers to some 4 practice by the employer that is allegedly unlawful.” E.E.O.C. v. Crown Zellerbach Corp., 720 5 F.2d 1008, 1013 (9th Cir. 1983) (emphasis in original). “It is not necessary, however, that the 6 practice be demonstrably unlawful; opposition clause protection will be accorded whenever the 7 opposition is based on a ‘reasonable belief’ that the employer has engaged in an unlawful 8 employment practice.” Id. (citing Sias v. City Demonstration Agency, 588 F.2d 692, 695-96 (9th 9 Cir. 1978). “The reasonableness of [a plaintiff’s] belief that an unlawful employment practice 10 occurred must be assessed according to an objective standard—one that makes due allowance, 11 moreover, for the limited knowledge possessed by most Title VII plaintiffs about the factual and 12 legal bases of their claims.” Moyo v. Gomez, 40 F.3d 982, 985 (9th Cir. 1994). 13 While “[c]ourts have not imposed a rigorous requirement of specificity in determining 14 whether an act constitutes ‘opposition,’” Crown Zellerbach Corp., 720 F.2d at 1013, it is clear to 15 the court that plaintiff’s alleged complaints filed with the TMCC Human Resources Department 16 on August 23, 2017, and September 30, 2017, constituted “opposition” to what plaintiff perceived 17 to be unlawful sexual harassment. Although plaintiff need not demonstrate that the opposed 18 conduct was unlawful sexual harassment, the facts as alleged must show that his opposition was 19 based on an objectively reasonable belief that the conduct was unlawful. It is certainly reasonable 20 for plaintiff to believe that Title VII protects him from sexual harassment in the workplace; 21 however, it is not objectively reasonable for a person in plaintiff’s position to believe the conduct 22 he has alleged was sexual harassment. The Merriam-Webster Online Dictionary (2020) defines 23 “sexual harassment” as “uninvited and unwelcome verbal or physical behavior of a sexual nature 24 especially by a person in authority toward a subordinate.”5 Plaintiff alleged that he complained to 25 TMCC of two incidents of sexual harassment—(1) when Vice President Murgolo grabbed plaintiff 26 and attempted to pull him on to the dance floor; and (2) when HR Director Fox touched him in a 27 way that made him feel uncomfortable and asked if he needed anything from her. While it is clear 1 to the court the conduct as alleged and complained of was unwelcome, and by two individuals in 2 authority, plaintiff has failed to allege that it was sexual in nature. Accordingly, nothing contained 3 within these allegations support a finding that his opposition was based on an objectively 4 reasonable belief that the conduct was unlawful. Therefore, because plaintiff has not sufficiently 5 alleged facts to support the first prong of his retaliation claim, the court grants defendants’ motion 6 to dismiss plaintiff’s first cause of action on this ground.

7 iii. Plaintiff fails to allege facts sufficient to establish a plausible claim for gender discrimination under Title VII. 8 9 Under Title VII, it is an “unlawful employment practice for an employer . . . to discriminate 10 against any individual with respect to his compensation, terms, conditions, or privileges of 11 employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. 12 § 2000e-2. To establish his prima facie case for Title VII discrimination based on gender, plaintiff 13 must show (1) he belongs to a protected class, (2) he was qualified for his position; (3) he suffered 14 an adverse employment action, and (4) similarly situated individuals outside his protected class 15 were treated more favorably. Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (citing 16 Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1123 (9th Cir. 2000)). 17 Plaintiff alleges facts sufficient to establish the first three elements of his prima facie case: 18 (1) he is a member of a protected class. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 19 78 (1998) (“Title VII’s prohibition of discrimination ‘because of . . . sex’ protects men as well as 20 women.”). (2) He alleges sufficient facts to support that he was qualified for the position—he was 21 recommended for tenure by his entire tenure committee, he received an “Outstanding” overall 22 ranking on each of his Tenure Probation Reports over a three year period, and he received an 23 “Excellent 2” ranking on his Annual Performance Evaluations over a three year period.6 And (3) 24 that he suffered adverse employment action. Simmons alleges that he was denied tenure, removed

25 6 Defendants attached a letter to Simmons from President Hilgersom regarding her recommendation to deny tenure in support of their arguments for why plaintiff was not qualified for his position. See ECF No. 14-1, 26 Ex. 1. Similarly, Simmons attached exhibits to his response in support of his argument that he was qualified 27 for tenure. See ECF No. 24 at 27-33. Such consideration of either parties’ documents would convert defendants’ motion to dismiss to one for summary judgment. The court declines to do so, and therefore, 1 from teaching in the classroom and given special assignments to be worked on off campus, and 2 ultimately terminated from his position with TMCC. However, plaintiff has failed to allege any 3 facts to support the fourth element of his claim—that individuals outside his class were treated 4 more favorably. Therefore, the court grants defendants’ motion to dismiss plaintiff’s first cause of 5 action on this ground.

6 D. Plaintiff’s state law claims—causes of action two through five—are dismissed because NSHE and the Board are state entities entitled to Eleventh Amendment 7 immunity. 8 Defendants argue that plaintiff’s state law claims—causes of action (2) breach of 9 employment contract; (3) breach of the covenant of good faith and fair dealing existing in 10 plaintiff’s employment contract; (4) breach of contract between defendant and TMCC-NFA, 11 (breach of the collective bargaining agreement); and (5) breach of the covenant of good faith and 12 fair dealing contained within the collective bargaining agreement which covered plaintiff’s 13 position as a Professor of Humanities at TMCC—are barred because NSHE and the Board are 14 state entities immune from suit pursuant to the Eleventh Amendment. See ECF No. 14. Plaintiff 15 argues that the court has supplemental jurisdiction over plaintiff’s state law claims because they 16 are “so related” to plaintiff’s first cause of action brought under the court’s federal question 17 jurisdiction, 28 U.S.C. § 1331. See ECF No. 24. 18 The Eleventh Amendment bars suits “in law or equity, commenced or prosecuted against 19 one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign 20 State.” U.S. CONST. AMEND. XI. “In the absence of a waiver by the state or a valid congressional 21 override, ‘[u]nder the eleventh amendment, agencies of the state are immune from private damage 22 actions or suits for injunctive relief brought in federal court.’” Dittman v. California, 191 F.3d 23 1020, 1025 (9th Cir. 1999) (quoting Mitchell v. Los Angeles Community College Dist., 861 F.2d 24 198, 201 (9th Cir. 1989)). 25 “Nevada has explicitly refused to waive its immunity to suit under the eleventh 26 amendment.” O’Connor v. Nevada, 686 F.2d 749, 750 (9th Cir. 1982) (citing NRS 41.031(3) (“The 27 State of Nevada does not waive its immunity from suit conferred by Amendment XI of the 1 does not abrogate state sovereign immunity for supplemental state law claims.” Stanley v. Trustees 2 of California State University: 433 F.3d 1129, 1133-34 (9th Cir. 2006). The Court reasoned:

3 “Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the 4 statute.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000) (internal quotation marks and citation omitted). 5 . . . The exercise of supplemental jurisdiction is governed by 28 U.S.C. § 1367, which 6 is silent as to sovereign immunity. The statute is a far cry from the “unmistakably clear” language required for abrogation. Additionally, there is no indication that 7 Congress intended to exercise its powers under Section 5 of the Fourteenth Amendment by enacting section 1367; the statute only addresses the jurisdiction of 8 federal courts, which Congress regulates through its Article I powers. 9 433 F.3d 1129, 1133-34 (9th Cir. 2006). 10 Defendants argue that NSHE and the Board are state entities entitled to immunity under 11 the Eleventh Amendment. The court agrees. In coming to this conclusion, the court considers the 12 following five factors in determining whether an entity is an arm of the state entitled to immunity: 13 (1) “whether a money judgment would be satisfied out of state funds;” (2) “whether the entity 14 performs central government functions;” (3) “whether the entity may sue or be sued;” (4) “whether 15 the entity has the power to take property in its own name or only the name of the state;” and (5) 16 “the corporate status of the entity.” Mitchell, 861 F.2d at 201. The first factor, whether the 17 judgment would impact the state treasury, is the most critical factor. Alaska Cargo Transp. v. 18 Alaska R.R. Corp., 5 F.3d 378, 380 (9th Cir 1993) (citations omitted). 19 “[T]he University system operates as a branch of the Nevada State government and . . . 20 the state is obligated to provide sufficient funds for its operation . . . .” Johnson v. Univ. of Nev., 21 596 F.Supp. 175, 178 (D. Nev. 1984). In Johnson, the court found that the University of Nevada 22 and its Board of Regents were state entities entitled to immunity under the Eleventh Amendment. 23 Id. In reaching this finding, the court noted, “[s]upport and maintenance of the university system 24 comes from the direct legislative appropriation from the general fund and land grants originally 25 given to the State of Nevada in 1862 by the Federal government.” Id. (citing NRS 396.370). 26 Similarly, in Simonian v. University and Community College System, a case dealing with 27 TMCC, the Nevada Supreme Court held that the University and Community College System was 1 approval and control of the state government;” (2) treated to some extent “as a state entity within 2 the Nevada Revised Statutes;” and (3) “through its Board, in possession of some sovereign 3 powers.” 128 P.3d 1057, 1061-62 (Nev. 2006) (citation omitted). 4 The “University of Nevada System” and the “University and Community College System” 5 referred to in Johnson and Simonian, respectively, now known as NSHE, includes universities and 6 community colleges, controlled and managed by the Board. See NRS 396.020. As the courts 7 recognized in Johnson and Simonian, pursuant to Nevada law, the general fund provides funding 8 for NSHE, and any damages awarded against NSHE would be chargeable to the State. Further, 9 because NSHE operates as a branch of the Nevada State government, it performs government 10 functions. Therefore, the court finds that NSHE and the Board operate as a branch of the Nevada 11 State government and are state entities immune from suit pursuant to the Eleventh Amendment. 12 Courts of this District have consistently come to the same conclusion. See Lucey v. Nev. ex 13 rel. Bd. of Regents of Nev. Sys. Of Higher Educ., Case No. 2:07-cv-00658-RLH-RJJ, 2007 WL 14 4563466, at *8 (D. Nev. Dec. 18, 2017); Risos-Camposano v. Nev. Sys. Of Higher Educ., Case No. 15 3:14-cv-00181-RCJ-VPC, 2014 WL 5503128, at *6-7 (D. Nev. Oct. 29, 2014) (finding that while 16 NSHE is generally immune from suit under the Eleventh Amendment, the State waived its 17 immunity when it removed the case to federal court);7 Adams v. McDonald, Case No. 3:06-cv- 18 00707-LRH-VPC, 2009 WL 2835109, at *2-3 (D. Nev. Aug. 28, 2009). And the Ninth Circuit has 19 concluded likewise. See Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 20 883 n.17 (9th Cir. 2004) (“It is also therefore unnecessary to consider the University System’s 21 contentions that it cannot be joined as a defendant because, as a sub-entity of the State of Nevada, 22 it is immune from suit under the Eleventh Amendment[.]”). The court declines to deviate from this 23 precedent. Accordingly, plaintiff’s state law claims—causes of action two through five—are 24 dismissed. 25 /// 26 /// 27 1 || IV. CONCLUSION 2 IT IS THEREFORE ORDERED that plaintiff's motion to amend his Complaint at 3 || paragraph 4 (see ECF No. 24) is GRANTED. 4 IT IS FURTHER ORDERED that defendants’ motion to dismiss plaintiff's complaint 5 || (ECF No. 14) is GRANTED. TMCC is dismissed from this suit, and plaintiffs first through fifth 6 || causes of action are dismissed. 7 IT IS FURTHER ORDERED that plaintiff is granted leave to file an amended complaint 8 || within 30 days from the date of entry of this order if he believes he may cure the deficiencies 9 || identified in this Order. 10 11 IT IS SO ORDERED. 12 DATED this 6th day of February, 2020. □

14 LAR . HIC 5 UNITED STATES DISTRICT JUDGE

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