Slack v. United Airlines, Inc.

• Court: District Court, D. Nevada
• Decided: March 23, 2020
• Docket: 2:18-cv-00899
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 PETER SLACK, ) 4 ) Plaintiff, ) Case No.: 2:18-cv-00899-GMN-DJA 5 vs. ) ) ORDER 6 UNITED AIRLINES, INC., ) 7 Defendant. ) 8 9 Pending before the Court is Defendant United Airlines, Inc.’s (“Defendant”) Partial 10 Motion to Dismiss the Second Amended Complaint, (ECF No. 30). Plaintiff Peter Slack 11 (“Plaintiff”) filed a Response, (ECF No. 32), and Defendant filed a Reply, (ECF No. 33). For 12 the reasons discussed below, the Court DENIES Defendant’s Motion to Dismiss. 13 I. BACKGROUND 14 This case arises from Defendant’s December 29, 2017 termination of Plaintiff as its 15 employee. (Second Am. Compl. (“SAC”) ¶ 60, ECF No. 29). That termination came after 16 Defendant conducted an internal investigation into Plaintiff for sexual harassment in the 17 workplace. (Id. ¶¶ 34–62). 18 Defendant’s internal investigation began on November 1, 2017, after members of 19 Plaintiff’s working group (specifically, Leona Lee and Markisha Jordan) accused Plaintiff of 20 sexual harassment. (Id. ¶¶ 33, 34). Upon receiving those accusations, Defendant immediately 21 suspended Plaintiff with pay pending the outcome of the investigation. (Id. ¶ 35). As the 22 investigation progressed, Plaintiff alleges that he provided his own evidence to combat the 23 harassment allegations, alongside a statement from another of Defendant’s employees stating 24 that Plaintiff was not a threat nor did he make the employee feel uncomfortable. (Id. ¶¶ 43–45, 25 52–55). Plaintiff similarly alleges that on December 14, 2017, as part of Defendant’s internal 1 investigation, Plaintiff explained to Defendant’s General Manager, George Bieloszabski, and 2 Assistant General Manager, Sherida Derby, that Defendant’s workplace had a “pervasive 3 culture of inappropriate, sexual, and harassing comments.” (Id. ¶¶ 56–59). At that time, 4 Plaintiff also “advised Mr. Bieloszabski and Ms. Derby that Ms. Lee is the employee who 5 regularly made inappropriate comments involving sexual issues, and sexually harasses other 6 employees frequently, including [Plaintiff].” (Id. ¶ 57). Moreover, Plaintiff reported co- 7 workers Monique Willis, Jesus Sosa, and David Jimenez “for inappropriate sexual jokes and 8 commentary to Defendant and, upon information and belief, Defendant did not take any action” 9 (Id. ¶ 32). 10 Roughly two weeks after that December 14, 2017 discussion, Defendant terminated 11 Plaintiff from his position. (Id. ¶ 60–65). Plaintiff subsequently tried to appeal his termination 12 through Defendant’s internal appellate procedures, but without success. (Id. ¶ 67–72). 13 On February 20, 2018, Plaintiff received a Right to Sue Letter from the United States 14 Equal Employment Opportunity Commission (“EEOC”), in response to his filing of a Charge 15 of Discrimination against Defendant. (Id. ¶ 4). On May 17, 2018, Plaintiff filed this action 16 against Defendant. (Compl., ECF No. 1). Plaintiff alleges the following three claims for relief: 17 (1) discrimination based on gender in violation of Nevada Revised Statute (“NRS”) 613.330 et. 18 seq. and 42 U.S.C. § 2000e et. seq. (“Title VII”); (2) retaliation in violation of 42 U.S.C. 19 § 2000e-3 and NRS 613.340; and (3) violation of the Civil Rights Act of 1871, 42 U.S.C. 20 § 1981. (Id. ¶¶ 74–106); (Pl’s Resp. at 5, ECF No. 12) (voluntarily waiving any claim for race,

21 color, national origin, and/or age discrimination under Title VII and state law). Plaintiff then 22 filed a First Amended Complaint, (ECF No. 6), based on the same claims; and Defendant filed 23 a Motion to Dismiss, (ECF No. 9). The Court granted the Motion as to Claims One and Three, 24 but gave Plaintiff leave to amend. (Mar. 29, 2019 Order, ECF No. 28). On April 19, 2019, 25 1 Plaintiff filed a Second Amended Complaint, (ECF No. 29). The instant Motion to Dismiss, 2 (ECF No. 30), now follows. 3 II. LEGAL STANDARD 4 Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action 5 that fails to state a claim upon which relief can be granted. See N. Star Int’l v. Ariz. Corp. 6 Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 7 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not 8 give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. 9 See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the 10 complaint is sufficient to state a claim, the Court will take all material allegations as true and 11 construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 12 F.2d 896, 898 (9th Cir. 1986). 13 The Court, however, is not required to accept as true allegations that are merely 14 conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden 15 State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action 16 with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a 17 violation is plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 18 Twombly, 550 U.S. at 555). 19 A court may also dismiss a complaint pursuant to Federal Rule of Civil Procedure 41(b) 20 for failure to comply with Federal Rule of Civil Procedure 8(a). Hearns v. San Bernardino

21 Police Dept., 530 F.3d 1124, 1129 (9th Cir. 2008). Rule 8(a)(2) requires that a complaint 22 contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” 23 Fed. R. Civ. P. 8(a)(2). A court should dismiss “Prolix, confusing complaints” as “they impose 24 unfair burdens on litigants and judges.” McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996). 25 1 “Generally, a district court may not consider any material beyond the pleadings in ruling 2 on a Rule 12(b)(6) motion . . . . However, material which is properly submitted as part of the 3 complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard 4 Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted). Similarly, 5 “documents whose contents are alleged in a complaint and whose authenticity no party 6 questions, but which are not physically attached to the pleading, may be considered in ruling on 7 a Rule 12(b)(6) motion to dismiss” without converting the motion to dismiss into one for 8 summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Otherwise, if the 9 court considers materials outside the pleadings, the motion to dismiss converts into a motion for 10 summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th 11 Cir. 2001). 12 III. DISCUSSION 13 Defendant moves to dismiss Plaintiff’s claims for gender discrimination and racial 14 discrimination on the ground that they lack sufficient allegations to plausibly support the named 15 causes of action.1 (See Mot. Dismiss (“MTD”) at 2, ECF No. 30). The Court addresses each 16 claim seriatim. 17 A. Gender Discrimination 18 Plaintiff’s first claim concerns gender discrimination in violation of Title VII and NRS 19 613.330. (SAC ¶¶ 74–88). Plaintiff accordingly must allege: (1) he belonged to a protected 20 class; (2) he was qualified for his job; (3) he experienced an adverse employment action; and

21 (4) similarly situated employees outside of his protected class were “treated more favorably, or 22

23 1 In its Motion, Defendant states that “it moves for dismissal . . . of certain claims asserted in Plaintiff’s Second 24 Amended Complaint,” and that it “seeks dismissal of Plaintiff’s discrimination and retaliation claims[.]” (Mot. Dismiss at 1, ECF No. 30). However, Defendant does not provide points and authorities supporting the 25 dismissal of Plaintiff’s retaliation claim. In fact, the Court’s March 29, 2019 order found that Plaintiff’s claim for retaliation was sufficiently pled. As such, the instant Order need not address retaliation. 1 [that] other circumstances surrounding the adverse employment action give rise to an inference 2 of discrimination.” Hawn v. Executive Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010) 3 (quoting Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004)); see Stewart v. 4 SBE Entm’t Grp., LLC, 239 F. Supp. 3d 1235, 1246 n.61 (D. Nev. 2017) (explaining that a 5 discrimination claim under NRS 613.330 proceeds under the same analysis as that of a Title 6 VII claim); Pope v. Motel 6, 114 P.3d 277, 280 (Nev. 2005). 7 Defendant argues that Plaintiff’s claim for gender discrimination should be dismissed 8 because “Plaintiff fails to allege facts to support that similarly situated individuals outside his 9 protected class—females—were treated more favorably.” (MTD at 5). The Court disagrees. 10 Plaintiff alleges he worked as a customer service agent and that during his employment 11 with Defendant, Plaintiff primarily “worked in a working group” comprised of Leona Lee, 12 Markisha Jordan, Rowena Helin, and Monique Willis, among others. (SAC ¶¶ 13, 18). Plaintiff 13 further alleges that Lee and Jordan were also customer service agents. (Id. ¶¶ 19, 23). Willis 14 “maintained the duties of a customer service agent, a service director and acting supervisor.” 15 (Id. ¶ 25). Helin worked as a service director. (Id. ¶ 24). Lee, Jordan, Helin, and Willis are all 16 female. (Id. ¶¶ 19, 23, 24, 25). Moreover, each of them made inappropriate sexual jokes and 17 commentary to Defendant. (Id. ¶¶ 20, 26, 32, 57, 58, 64). Additionally, Lee sexually harassed 18 Plaintiff and other employees frequently. (Id. ¶ 57). According to Plaintiff, when Plaintiff he 19 accused of sexual harassment, Defendant did not consider the evidence Plaintiff produced and 20 only considered the statements of Plaintiff’s accusers, which were exclusively female. (Id.

21 ¶¶ 61–63, 65). Defendant then terminated Plaintiff. (Id. ¶ 60). When Plaintiff made similar 22 accusations regarding Lee, Jordan, Helin, and Willis, Defendant did not terminate them, nor did 23 Defendant adequately investigate the accusations Plaintiff made against them. (Id. ¶¶ 22, 28, 24 32, 63, 64). 25 1 Taken together, Plaintiff’s allegations show that employees outside of Plaintiff’s 2 protected class engaged in comparable work activity as Plaintiff and engaged in similar conduct 3 as that alleged against Plaintiff. Hawn, 615 F.3d at 1157 (“Generally, we have determined that 4 ‘individuals are similarly situated when they have similar jobs and display similar conduct.’”). 5 Moreover, said female employees were treated more favorably than Plaintiff because while 6 Defendant terminated Plaintiff, no adverse employment action was taken against the female 7 employees. Accordingly, Plaintiff provides sufficient factual allegations that reveal a plausible 8 claim for gender discrimination. The Court thus denies Defendant’s Motion as to this claim. 9 B. Violation of the Civil Rights Act of 1871, § 1981 10 Plaintiff also asserts a claim for violation of the Civil Rights Act of 1871, 42 U.S.C. 11 § 1981. (SAC ¶¶ 98–106). Section 1981 prohibits discrimination in the “benefits, privileges, 12 terms and conditions” of employment. 42 U.S.C. § 1981(b); Metoyer v. Chassman, 504 F.3d 13 919, 935 (9th Cir. 2007). When analyzing § 1981 claims, courts apply “the same legal 14 principles as those applicable in a Title VII disparate treatment case.” Id. at 930 (quoting 15 Fonseca v. Sysco Food Servs. of Ariz. Inc., 374 F.3d 840, 850 (9th Cir. 2004)). 16 Defendant first argues that this claim should be dismissed because Plaintiff fails to 17 allege that “similarly situated employees outside his protected class—African-American—were 18 treated more favorably.” (MTD at 8). This argument is unpersuasive. Plaintiff alleges that he 19 worked for Defendant as a customer service agent. (SAC ¶ 13). Sosa and Jimenez were 20 Hispanic males that also worked as customer service agents for Defendant. (Id. ¶ 31). Sosa and

21 Jimenez “routinely made inappropriate commentary while working for Defendant.” (Id.). 22 When Plaintiff was accused of sexual harassment, Defendant terminated Plaintiff. (Id. ¶¶ 33, 23 60). When Plaintiff reported Sosa and Jimenez for inappropriate sexual jokes and commentary 24 to Defendant, Defendant did not take any action. (Id. ¶ 32). Resolving all reasonable doubts 25 and inferences in Plaintiff’s favor, and viewing the Second Amended Complaint in the light 1 most favorable to the non-moving party, Twombly, 550 U.S. at 555, Plaintiff has sufficiently 2 alleged that similarly situated employees outside his protected class were treated more 3 favorably. 4 Defendant next argues that Nevada is an at-will employment state and “Plaintiff fails to 5 provide any allegations about his purported employment contract, giving rise to his Section 6 1981 claim.” (MTD at 8). However, at-will employment can serve as the predicate contract for 7 a discrimination claim under Section 1981. Skinner v. Maritz, Inc., 253 F.3d 337, 340 (8th Cir. 8 2001); Lauture v. Int’l Business Machines Corp., 216 F.3d 258, 262–63 (2d Cir. 2000); Perry v. 9 Woodward, 199 F.3d 1126, 1133 (10th Cir. 1999); Spriggs v. Diamond Auto Glass, 165 F.3d 10 1015, 1018–19 (4th Cir. 1999); Fadeyi v. Planned Parenthood Ass’n of Lubbock, Inc., 160 F.3d 11 1048, 1051–52 (5th Cir. 1998);.Mendoza v. Kindred Healthcare Operating, Inc., No. 11-cv- 12 00666-YGR, 2012 WL 2055007, at *14 (N.D. Cal. June 5, 2012). As such, this argument is 13 unavailing. 14 Further, Defendant relies on Patterson v. McLean Credit Union, 491 U.S. 164 (1989), 15 for the proposition that “Section 1981 applies only to the making and enforcement of private 16 contract and does not apply to ‘conduct which occurs after the formation of a contract and 17 which does not interfere with the right to enforce established contract violations.’” (Reply at 18 34) (quoting Patterson, 491 U.S. at 171). But Patterson is a 1989 decision. In response to the 19 Patterson holding, Congress amended § 1981 as part of the 1991 Civil Rights Act. Congress 20 added subsection (b), which defines “make and enforce contracts” as “the making,

21 performance, modification, and termination of contracts, and the enjoyment of all benefits, 22 privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b). Given 23 that § 1981 now includes the enjoyment of all benefits, privileges, terms, and conditions of the 24 contractual relationship, Defendant’s interpretation of § 1981 as only applying to conduct 25 which occurs after the formation of a contract is inappropriately narrow. 1 Lastly, Defendant asserts that, “Plaintiff fails to allege that Ms. Sosa and Mr. Jimenez’s 2 alleged comments were specifically sexual in nature or based on any protected characteristic.” 3 (MTD at 8 n.5). However, Plaintiff’s Second Amended Complaint alleges that “[o]n December 4 14, 2017, [Plaintiff] reported . . . Mr. Sosa and Mr. Jimenez for inappropriate sexual jokes and 5 commentary to Defendant and, upon information and belief, Defendant did not take any 6 action.” (SAC ¶ 32) (emphasis added). As such, this argument is without support. The Court 7 therefore finds that Plaintiff was sufficiently stated a cause of action under § 1981. 8 Accordingly, because Defendant has failed to meet its burden regarding each of its Rule 9 12(b)(6) arguments, Defendant’s Motion to Dismiss is denied. 10 IV. CONCLUSION 11 IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss, (ECF No. 9), is 12 DENIED. 13 DATED this _2__3__ day of March, 2020. 14 15 _________________________________ Gloria M. Navarro, District Judge 16 United States District Court 17 18 19 20 21 22 23 24 25