2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 SELWYN LAMAR TALLEY, Case No. 2:22-cv-01115-ART-BNW 5 Plaintiff, ORDER 6 v. (ECF No. 8) 7 CITY OF NORTH LAS VEGAS, et al.,
8 Defendants.
9 10 Plaintiff Selwyn LaMar Talley sued the City of North Las Vegas, Chief of 11 Police Pamela Ojeda, Detective Lieutenant Carolyn White, Marisa Rodriguez, and 12 Katheryne Gaspardi in their official and individual capacities for employment 13 discrimination under 42 U.S.C §§ 1981, 1983, Title VII of the Civil Rights Act, 14 NRS 613.330 and 613.440, state defamation law, conspiracy, and whistleblower 15 retaliation after Plaintiff was demoted from his position as a police officer with 16 the North Las Vegas Police Department. The Court held a hearing adjudicating 17 Defendants’ motion to dismiss in August 2023 in which the Court ruled from the 18 bench. (ECF No. 49.) Both parties moved for entry of a written order on the 19 motion. 20 I. FACTUAL AND PROCEDURAL BACKGROUND 21 Plaintiff worked as a police officer with the North Las Vegas Police 22 Department for several years. In 2016, Plaintiff was appointed to the position of 23 domestic violence liaison officer for the City Attorney. Two years later, Defendant 24 Ojeda and Defendant White were promoted to supervisory positions over Plaintiff. 25 Plaintiff alleges that Defendant White assigned Plaintiff a substantially higher 26 caseload than other officers. Plaintiff alleges that Defendants monitored his 27 computer, represented to the city attorney that Plaintiff had a DUI, and that 28 Defendant Gaspardi restricted Plaintiff’s access to reports that showed that 1 Plaintiff had identified and recommended stricter punishments on dangerous 2 suspects who went to commit serious crimes. On June 4, 2020, Defendant 3 Gaspardi told Plaintiff that he was demoted from the City Attorney’s office to 4 patrol, a demotion which carried a pay reduction of eight percent. Plaintiff learned 5 later that the Department had replaced him with a white officer. One week later, 6 Plaintiff filed notice to retire and receive his badges and concealed carry permit 7 for retired police officers. Defendant Chief Ojeda denied Plaintiff’s request. 8 A few weeks later, Plaintiff sought reinstatement. Human Resources 9 rejected his request. According to Plaintiff, Defendant Chief Ojeda started rumors 10 that Plaintiff had not properly followed procedures to retire from the Department 11 and taken property, namely badges, from the Department that he was not entitled 12 to take. 13 Plaintiff filed a charge with the EEOC on March 30, 2021, 299 days after 14 his demotion. 15 II. LEGAL STANDARD 16 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 17 Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for 18 failure to state a claim is proper only if the plaintiff clearly cannot prove any set 19 of facts in support of the claim that would entitle him or her to relief. See Morley 20 v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the 21 Court takes as true all allegations of material fact stated in the complaint, and 22 the Court construes them in the light most favorable to the plaintiff. See Warshaw 23 v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). While the standard under Rule 24 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more 25 than mere labels, conclusions, or a formulaic recitation of a claim’s elements. See 26 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “While legal conclusions can 27 provide the framework of a complaint, they must be supported with factual 28 allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 1 III. ANALYSIS 2 A. Motion to Remand 3 “Federal courts are courts of limited jurisdiction” and possess only the 4 power granted by the Constitution and statute. Kokkonen v. Guardian Life Ins. 5 Co. of Am., 511 U.S. 375, 377 (1994). A defendant may remove a case filed in 6 state court to federal court if a federal question is present. 28 U.S.C. § 1441. A 7 federal district court may exercise federal question jurisdiction only when a 8 plaintiff’s claim for relief depends on application of federal law. See id. § 1331. 9 Plaintiff brings federal causes of action under 42 U.S.C. §§ 1981, 1983 and Title 10 VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Because Plaintiff’s claims 11 for relief depend on application of federal law, and the motion to remand is 12 denied. 13 B. Motion to Dismiss Re: Capacity 14 Defendants seek to dismiss claims against officers in their official capacity 15 as duplicative of Plaintiff’s claim against the Department. The Court agrees. 16 Official-capacity suits are “only another way of pleading an action against an 17 entity of which an officer is an agent” and is “to be treated as a suit against the 18 entity.” Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (citing Monell v. New 19 York City Dept. of Social Services, 436 U.S. 658, 690, n. 55 (1978)). Plaintiff’s 20 claims against Defendants in their official capacity may thus be dismissed as 21 duplicative. Claims against Defendants in their individual capacity remain. 22 C. Motion to Dismiss Re: Discrimination Claims 23 Defendants moved to dismiss Plaintiff’s discrimination claims as untimely 24 and implausible. The Court rejects both grounds. 25 First, the Court rejects Defendant’s argument that Plaintiff’s claims are 26 time-barred. Generally, EEOC charges must be filed within 180 days of alleged 27 unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1). In states with an anti- 28 discrimination agency that has concurrent jurisdiction over employment 1 discrimination, the deadline to file with the EEOC extends to 300 days. 29 CFR 2 § 1601.13(a)(4)(ii)(A). Nevada’s Equal Rights Commission is a state anti- 3 discrimination agency with concurrent jurisdiction over employment 4 discrimination claims. Plaintiff filed his charge with the EEOC within 300 days of 5 the alleged unlawful employment practice. Defendant’s motion to dismiss 6 Plaintiff’s EEOC charge is therefore denied. 7 Additionally, the Court rejects Defendants’ motion to dismiss conduct 8 alleged to have occurred more than 300 days before Plaintiff’s EEOC charge. To 9 timely file a Title VII hostile work environment claim, “the employee need only file 10 a charge within 180 or 300 days of any act that is part of the hostile work 11 environment.” Nat'l R.R.
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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 SELWYN LAMAR TALLEY, Case No. 2:22-cv-01115-ART-BNW 5 Plaintiff, ORDER 6 v. (ECF No. 8) 7 CITY OF NORTH LAS VEGAS, et al.,
8 Defendants.
9 10 Plaintiff Selwyn LaMar Talley sued the City of North Las Vegas, Chief of 11 Police Pamela Ojeda, Detective Lieutenant Carolyn White, Marisa Rodriguez, and 12 Katheryne Gaspardi in their official and individual capacities for employment 13 discrimination under 42 U.S.C §§ 1981, 1983, Title VII of the Civil Rights Act, 14 NRS 613.330 and 613.440, state defamation law, conspiracy, and whistleblower 15 retaliation after Plaintiff was demoted from his position as a police officer with 16 the North Las Vegas Police Department. The Court held a hearing adjudicating 17 Defendants’ motion to dismiss in August 2023 in which the Court ruled from the 18 bench. (ECF No. 49.) Both parties moved for entry of a written order on the 19 motion. 20 I. FACTUAL AND PROCEDURAL BACKGROUND 21 Plaintiff worked as a police officer with the North Las Vegas Police 22 Department for several years. In 2016, Plaintiff was appointed to the position of 23 domestic violence liaison officer for the City Attorney. Two years later, Defendant 24 Ojeda and Defendant White were promoted to supervisory positions over Plaintiff. 25 Plaintiff alleges that Defendant White assigned Plaintiff a substantially higher 26 caseload than other officers. Plaintiff alleges that Defendants monitored his 27 computer, represented to the city attorney that Plaintiff had a DUI, and that 28 Defendant Gaspardi restricted Plaintiff’s access to reports that showed that 1 Plaintiff had identified and recommended stricter punishments on dangerous 2 suspects who went to commit serious crimes. On June 4, 2020, Defendant 3 Gaspardi told Plaintiff that he was demoted from the City Attorney’s office to 4 patrol, a demotion which carried a pay reduction of eight percent. Plaintiff learned 5 later that the Department had replaced him with a white officer. One week later, 6 Plaintiff filed notice to retire and receive his badges and concealed carry permit 7 for retired police officers. Defendant Chief Ojeda denied Plaintiff’s request. 8 A few weeks later, Plaintiff sought reinstatement. Human Resources 9 rejected his request. According to Plaintiff, Defendant Chief Ojeda started rumors 10 that Plaintiff had not properly followed procedures to retire from the Department 11 and taken property, namely badges, from the Department that he was not entitled 12 to take. 13 Plaintiff filed a charge with the EEOC on March 30, 2021, 299 days after 14 his demotion. 15 II. LEGAL STANDARD 16 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 17 Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for 18 failure to state a claim is proper only if the plaintiff clearly cannot prove any set 19 of facts in support of the claim that would entitle him or her to relief. See Morley 20 v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the 21 Court takes as true all allegations of material fact stated in the complaint, and 22 the Court construes them in the light most favorable to the plaintiff. See Warshaw 23 v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). While the standard under Rule 24 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more 25 than mere labels, conclusions, or a formulaic recitation of a claim’s elements. See 26 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “While legal conclusions can 27 provide the framework of a complaint, they must be supported with factual 28 allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 1 III. ANALYSIS 2 A. Motion to Remand 3 “Federal courts are courts of limited jurisdiction” and possess only the 4 power granted by the Constitution and statute. Kokkonen v. Guardian Life Ins. 5 Co. of Am., 511 U.S. 375, 377 (1994). A defendant may remove a case filed in 6 state court to federal court if a federal question is present. 28 U.S.C. § 1441. A 7 federal district court may exercise federal question jurisdiction only when a 8 plaintiff’s claim for relief depends on application of federal law. See id. § 1331. 9 Plaintiff brings federal causes of action under 42 U.S.C. §§ 1981, 1983 and Title 10 VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Because Plaintiff’s claims 11 for relief depend on application of federal law, and the motion to remand is 12 denied. 13 B. Motion to Dismiss Re: Capacity 14 Defendants seek to dismiss claims against officers in their official capacity 15 as duplicative of Plaintiff’s claim against the Department. The Court agrees. 16 Official-capacity suits are “only another way of pleading an action against an 17 entity of which an officer is an agent” and is “to be treated as a suit against the 18 entity.” Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (citing Monell v. New 19 York City Dept. of Social Services, 436 U.S. 658, 690, n. 55 (1978)). Plaintiff’s 20 claims against Defendants in their official capacity may thus be dismissed as 21 duplicative. Claims against Defendants in their individual capacity remain. 22 C. Motion to Dismiss Re: Discrimination Claims 23 Defendants moved to dismiss Plaintiff’s discrimination claims as untimely 24 and implausible. The Court rejects both grounds. 25 First, the Court rejects Defendant’s argument that Plaintiff’s claims are 26 time-barred. Generally, EEOC charges must be filed within 180 days of alleged 27 unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1). In states with an anti- 28 discrimination agency that has concurrent jurisdiction over employment 1 discrimination, the deadline to file with the EEOC extends to 300 days. 29 CFR 2 § 1601.13(a)(4)(ii)(A). Nevada’s Equal Rights Commission is a state anti- 3 discrimination agency with concurrent jurisdiction over employment 4 discrimination claims. Plaintiff filed his charge with the EEOC within 300 days of 5 the alleged unlawful employment practice. Defendant’s motion to dismiss 6 Plaintiff’s EEOC charge is therefore denied. 7 Additionally, the Court rejects Defendants’ motion to dismiss conduct 8 alleged to have occurred more than 300 days before Plaintiff’s EEOC charge. To 9 timely file a Title VII hostile work environment claim, “the employee need only file 10 a charge within 180 or 300 days of any act that is part of the hostile work 11 environment.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002); 12 see, e.g., Davis v. California Dep't of Corr. & Rehab., 484 F. App'x 124, 130 (9th 13 Cir. 2012). Plaintiff may allege discriminatory conduct from before the 300-day 14 statute of limitations period that together with conduct within the 300-day 15 practice forms one part of a whole unlawful employment practice. These 16 allegations survive the motion to dismiss. 17 Next, the Court dismisses Plaintiff’s § 1981 claim, with leave to refile as a 18 § 1983 claim. “A plaintiff seeking to enforce rights secured by § 1981 against a 19 state actor must bring a cause of action under § 1983.” Yoshikawa v. Seguirant, 20 74 F.4th 1042, 1047 (9th Cir. 2023). The Court thus dismisses Plaintiff’s § 1981 21 claim with leave to refile it as a § 1983 claim enforcing Plaintiff’s rights 22 under § 1981. 23 Next, the Court rejects Defendants’ argument that Plaintiff has failed to 24 state a Monell claim against the city. To make a Monell claim, Plaintiff must show 25 “(1) he was deprived of a constitutional right; (2) the municipality had a policy; 26 (3) the policy amounted to deliberate indifference to [his] constitutional right; and 27 (4) the policy was the moving force behind the constitutional violation.” Lockett v. 28 Cnty. of Los Angeles, 977 F.3d 737, 741 (9th Cir. 2020) (citing Dougherty v. City 1 of Covina, 654 F.3d 892, 900 (9th Cir. 2011)). Alternatively, “a municipality can 2 be liable for an isolated constitutional violation when the person causing the 3 violation has ‘final policymaking authority.’” Christie v. Iopa, 176 F.3d 1231, 1235 4 (9th Cir. 1999). In a complaint filed by a pro se civil rights plaintiff, the Court 5 construes the pleadings liberally affords the petitioner the benefit of any doubt. 6 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Plaintiff alleges deprivation of 7 a constitutional right, that his disparate treatment was part of a policy and 8 practice of the municipality, and while he does not mention a final policy maker, 9 the Court will construe Plaintiff’s pro se complaint liberally and permit the Monell 10 claim to survive the Motion to Dismiss. 11 D. Motion to Dismiss Re: Defamation Claims 12 Defendants moved to dismiss Plaintiff’s defamation claims on various 13 grounds, including that EEOC charges are privileged, that Defendant Ojeda’s 14 claim that Plaintiff did not turn in his HR-218 form is not defamatory, and that 15 Plaintiff failed to allege defamation with specificity. The Court grants the motion 16 to dismiss on Plaintiff’s defamation claims regarding EEOC charges and rejects 17 it on the remaining two grounds. 18 Statements that are part of an EEOC investigation are confidential. 42 19 U.S.C. § 2000e–5(b). If neither the EEOC nor the defaming party publishes them, 20 they are not actionable for defamation. The Court grants Defendants’ motion to 21 dismiss these claims. 22 The Court rejects Defendants’ arguments that Defendant Ojeda’s claim that 23 Plaintiff failed to turn in his HR-218 form is not defamatory and that Plaintiff 24 failed to specifically allege defamatory statements. Plaintiff’s claim regarding the 25 HR-218 form is interrelated with other factual issues, including Plaintiff’s 26 allegation that Defendant Ojeda claimed to refuse to authorize the form because 27 of the allegedly false claim that Plaintiff had a DUI. The Court denies the Motion 28 to Dismiss Plaintiff’s defamation, false light, and libel claims outside of those 1 made in response to Plaintiff’s EEOC charge. 2 E. Motion to Dismiss Re: Marisa Rodriguez 3 The Court agrees with Defendants’ motion to dismiss Defendant Rodriguez 4 because Plaintiff fails to allege specific involvement in his claims. Plaintiff claims 5 Defendant Rodriguez drafted the city’s response to his EEOC charge and that he 6 sent Defendant Rodriguez records requests. These are insufficient bases to sue 7 Defendant Rodriguez. The response to the EEOC charge was privileged. Plaintiff 8 alleges no facts that connect the records requests to Plaintiff’s claims. The Court 9 dismisses Defendant Rodriguez without prejudice and with leave to amend. 10 F. Intentional Infliction of Emotional Distress 11 The Court agrees with Defendants’ argument to dismiss Plaintiff’s 12 Intentional Infliction of Emotional Distress (IIED) claim. IIED requires showing 13 “(1) extreme and outrageous conduct with either the intention of, or reckless 14 disregard for, causing emotional distress, (2) the plaintiff's having suffered severe 15 or extreme emotional distress and (3) actual or proximate causation.” Star v. 16 Rabello, 97 Nev. 124, 125, 625 P.2d 90, 92 (1981). Plaintiff has failed to plead 17 truly outrageous conduct or his own physical manifestations of severe emotional 18 distress. This claim is dismissed without prejudice and with leave to amend. 19 G. Conspiracy 20 The Court rejects Defendants’ argument to dismiss Plaintiff’s conspiracy 21 claim as barred by the intracorporate conspiracy doctrine. The intracorporate 22 conspiracy doctrine states that “an agreement between or among agents of the 23 same legal entity, when the agents act in their official capacities, is not an 24 unlawful conspiracy.” Ziglar v. Abbasi, 582 U.S. 120, 153, 137 S. Ct. 1843, 1867, 25 198 L. Ed. 2d 290 (2017) (citing Copperweld Corp. v. Independence Tube Corp., 26 467 U.S. 752, 769–771 (1984)). Plaintiff alleges that Defendants conspired to 27 deprive Plaintiff of his civil rights by withholding his HR-218 certification under 28 false pretenses and preventing him from obtaining records. This conduct is not 1 part of the City of North Las Vegas’s lawful business. The intracorporate 2 conspiracy doctrine does not bar Plaintiff’s claim at this stage. 3 H. Whistleblower Retaliation 4 The Court rejects Defendants’ argument to dismiss Plaintiff’s whistleblower 5 retaliation claim in part and grants it in part. Title VII permits Plaintiffs to sue 6 employers who commit unlawful employment practices on account of an 7 employee reporting violations to the EEOC. 42 U.S.C. § 2000e-3(a). NRS 613.340 8 permits a retaliation causes of action that tracks this federal cause of action. 9 Pope v. Motel 6, 114 P.3d 277, 281 (2005). Plaintiff’s allegations that his demotion 10 was the result of whistleblowing may not proceed because Plaintiff did not allege 11 any whistleblowing prior to his demotion. Plaintiff’s allegation that his demotion 12 were the result of him disagreeing about charges to file against a specific burglary 13 suspect are likewise not actionable because Plaintiff did not whistleblow to an 14 outside entity. Plaintiff’s argument that the City refused to reinstate him and 15 issue him the HR-218 form because he filed an EEOC charge is a cognizable 16 whistleblowing claim, and this claim alone may proceed. 17 IV. CONCLUSION 18 Plaintiff’s motion to remand (ECF No. 19) is denied. 19 Defendants’ motion to dismiss (ECF No. 8) is granted in part and denied in 20 part. 21 The claims against the individual defendants in their official capacities are 22 dismissed with prejudice. 23 Plaintiff’s § 1981 claim is dismissed with prejudice and leave to amend to 24 allege as a § 1983 claim. 25 The claims against Defendant Rodriguez are dismissed with leave to 26 amend. 27 Plaintiff’s defamation, false light, and libel claims are dismissed with 28 respect to privileged statements made in the context of responding to the EEOC 1 || charge. 2 Plaintiff's intentional infliction of emotional distress claim is dismissed with 3 || leave to amend. 4 The motion to dismiss is denied in all other respects. 5 6 DATED THIS 22nd day of October 2024. 7 Ara losed Jer 8 ANNE R. TRAUM 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28