Ware v. NBC Nevada Merchants, Inc.

219 F. Supp. 3d 1040, 2016 U.S. Dist. LEXIS 165850, 2016 WL 7042072
CourtDistrict Court, D. Nevada
DecidedNovember 30, 2016
DocketCase No. 2:16-CV-135 JCM (CWH)
StatusPublished
Cited by3 cases

This text of 219 F. Supp. 3d 1040 (Ware v. NBC Nevada Merchants, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ware v. NBC Nevada Merchants, Inc., 219 F. Supp. 3d 1040, 2016 U.S. Dist. LEXIS 165850, 2016 WL 7042072 (D. Nev. 2016).

Opinion

ORDER

James C. Mahan, UNITED STATES DISTRICT JUDGE

Presently before the court is defendant NBC Nevada Merchants Inc.’s motion to dismiss.1 (ECF No. 9). Plaintiff Carolyn Ware filed a response in opposition, (ECF No. 13) and defendant replied (ECF No. 19).

I. Background

This case concerns defendant’s alleged racial discrimination, a potential violation of Title VII, while working for defendant. (ECF No. 1). Plaintiff asserts a cause of action against defendant for racial discrimination under Title VII. (Id.).

Plaintiff is an African-American female who was hired as a merchandise controller working for defendant at a TJ Maxx Warehouse. (Id.). Plaintiff had experience working as a supervisor at Wal-Mart. (Id.). She applied for employment with defendant in July 2009, seeking the position of AOM.2 AOM was the “highest” position that plaintiff applied for, followed by the supervisor position. (Id.). Plaintiff was hoping to receive a position as an AOM or supervisor; however, she was hired in a “lower” position as a merchandise controller. (Id.). Plaintiff alleges that she was paid less in as a merchandise controller than she would have been in the two superior positions. (Id.).

[1044]*1044Plaintiff asserts that her supervisor, a white female in the position of AOM, asked her to fire four minority employees with no justification. (Id.). She further asserts that she had a satisfactory job evaluation until she refused to fire the minority employees, at which time her evaluations soured. (Id.). Plaintiff and other minority employees were allegedly denied overtime, which was purportedly given to a white employee. (Id.). Plaintiff states that she complained to her supervisor’s superior that plaintiff felt that she was a victim of discrimination. (Id.).

In August and September of 2013, defendant hired two new Caucasian supervisors. (Id.). They both had experience as supervisors at Wal-Mart in positions subordinate to the supervisory position plaintiff held while at Wal-Mart. (Id.). Further, plaintiff claims that while she was on medical leave in March 2014, a white employee was promoted from her department. (Id.). According to plaintiff, she never received notice of the open position. (Id.). Plaintiff alleges that, as a result of the white employee receiving the promotion, her supervisor moved plaintiffs shift. (Id.). Plaintiff contends that her hours decreased from forty hours to thirty-six hours per week and that she lost her shift differential due to her supervisor’s shift adjustment. (Id.).

On July 10, 2014, plaintiffs supervisor gave plaintiff a birthday card and allegedly made plaintiff open the card in front of her. (Id.). The birthday card had monkeys on the front, which plaintiff asserts made her uncomfortable due to her previous experiences with her supervisor. (Id.). Plaintiffs supervisor reportedly told plaintiff that she gave her a card with monkeys on the front because “it’s a zoo here.” (Id. at 3).

Plaintiff filed her Nevada Equal Rights Commission (“NERC”) complaint in December 2014. (Id.). After the investigation began, plaintiff says her supervisor asked who plaintiff had been speaking with and told her that she should leave if she did not like the way things were done at the store location. (Id.). Plaintiffs supervisor and her assistant allegedly told other employees that they were not to speak with plaintiff. (Id.). In April 2015, plaintiffs supervisor wrote in plaintiffs evaluation that she “needs to get all of the facts before reacting.” (Id. at 4). Plaintiff believes this statement was a response to the NERC complaint she filed against defendant. (Id.).

Plaintiff claims that defendant later hired an outside security company and that a security officer thereafter would follow plaintiff and watch her every move. (Id.). Plaintiff asked a security officer who was monitoring her and following her around the warehouse for that security officer’s name and badge number. (Id.) Plaintiff then reported what she perceived to be the aggressive and harassing behavior of the security officer to two individuals.3 (Id.). After plaintiffs complaint regarding the security officer, plaintiff was told that she was going to be “writ[ten] up” for verbal[ly] attacking] the security officer.4 (Id. at 4.).

Defendant seeks to dismiss plaintiffs complaint for failure to timely exhaust administrative remedies or because it is implausible. (ECF No. 9). Plaintiff responded by arguing that she asserted the elements [1045]*1045of a discrimination claim and that she exhausted claims involving harassing conduct and disparate treatment in her original charge of discrimination. (EOF No. 13). Defendant replied that plaintiffs failure to exhaust administrative remedies and the implausibility of a racial discrimination claim based on an allegedly racially offensive birthday card and security following plaintiff require the court to dismiss plaintiffs complaint. (EOF No. 19).

II. Legal Standard

The court may dismiss a plaintiffs complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although Rule 8 does not require “detailed factual allegations,” it “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not” suffice. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Rule 8 “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

A complaint must state plausible claims. Id. at 679, 129 S.Ct. 1937. For a claim to be plausible on its face it must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678, 129 S.Ct. 1937. If a complaint merely has “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” it does not meet the requirements for plausibility. Id.

In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering a motion to dismiss. Id. at 678-679, 129 S.Ct. 1937. First, the court must accept as true all of the allegations contained in a complaint. Id. at 678, 129 S.Ct. 1937. However, this requirement is inapplicable to legal conclusions. Id. at 680, 129 S.Ct. 1937. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. at 678, 129 S.Ct. 1937.

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219 F. Supp. 3d 1040, 2016 U.S. Dist. LEXIS 165850, 2016 WL 7042072, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ware-v-nbc-nevada-merchants-inc-nvd-2016.