Opinion
3:16-cv-00019-HDM-VPC
01-04-2017
ERICA POOL, Plaintiff, v. GAIL WILLEY LANDSCAPING, INC., GAIL WILLEY and DOES 1-50, Defendant. And related counterclaims.
ORDER
Before the court is defendants' motion for partial judgment on the pleadings (ECF No. 35). Plaintiff has responded (ECF No. 37), and defendants have replied (ECF No. 39).
Plaintiff's complaint asserts eight causes of action: (1) Count I - sex and religious discrimination pursuant to Title VII, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981 et seq., and Nev. Rev. Stat. § 613.330 et seq.; (2) Count II - retaliation pursuant to Title VII 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981 et seq., and Nev. Rev. Stat. § 613.330 et seq.; (3) Count III - tortious discharge; (4) Count IV - failure to pay overtime in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and Nev. Rev. Stat. § 608.018; (5) Count V - failure to pay for each hour worked in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and Nev. Rev. Stat. § 608.018; (6) Count VI - failure to provide periods for meal and rest in violation of Nev. Rev. Stat. § 608.019; (7) Count VII - willful failure/refusal to pay wages in violation of Nev. Rev. Stat. § 608.190; and (8) Count IX - waiting time penalties in violation of Nev. Rev. Stat. § 608.040. The prayer for relief also seeks damages pursuant to 42 U.S.C. § 1983.
In his motion, the defendant Gail Willey seeks a judgment of dismissal, arguing that although he was named as a defendant, none of the claims are pleaded against him individually. He further argues that even if the claims had been pled against him individually, the discrimination claims in Counts I and II cannot stand against him because discrimination claims can be brought only against employers and not against individuals. In addition, both defendants assert that plaintiff's claims under 42 U.S.C. § 1981 and 1983 are not tenable given the allegations of the complaint, that plaintiff's claim of tortious discharge is not cognizable because she has an adequate statutory remedy, and that plaintiff's claims under Chapter 608 of the Nevada Revised Statutes are not tenable because there is no private right of action to enforce the labor statutes therein.
Plaintiff does not oppose defendants' motion, but requests that most of the claims be dismissed without prejudice. Defendants in response request that the court enter partial judgment in their favor on all claims set forth in the pleading.
Although named as a defendant, Gail Willey has not been named in any cause of action in the complaint. Accordingly, this action is hereby DISMISSED WITHOUT PREJUDICE as to defendant Gail Willey except as to the claims dismissed with prejudice as hereinafter set forth.
Plaintiff's claims of religious and sexual discrimination and retaliation in violation of 42 U.S.C. § 1981 are not cognizable, as § 1981 applies only to claims of racial discrimination. See Runyon v. McCrary, 427 U.S. 160, 167 (1976). Therefore, those portions of Counts I and II asserting a claim under § 1981 are DISMISSED WITH PREJUDICE as to both defendant Gail Willey and defendant Gail Willey Landscaping, Inc.
Section 1983 of Title 42 of the United States Code applies only to state actors. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999). Plaintiff concedes that defendants are not state actors and that this claim is properly dismissed. Accordingly, plaintiff's request for damages under § 1983 is DISMISSED WITH PREJUDICE as to both defendant Gail Willey and defendant Gail Willey Landscaping, Inc.
Plaintiff's claim of tortious discharge based on her refusal to participate in certain religious practices is not cognizable because she has adequate statutory remedies for this claim. See Chavez v. Sievers, 43 P.3d 1022, 1026 (Nev. 2002); 42 U.S.C. § 2000e et seq.; Nev. Rev. Stat. § 613.330 et seq. Plaintiff stipulates that this claim should be dismissed. Accordingly, Count III is DISMISSED WITH PREJUDICE as to both defendant Gail Willey and defendant Gail Willey Landscaping, Inc.
Finally, plaintiff agrees that there is no private right to enforce the claims she has brought under Chapter 608 of the Nevada Revised Statutes. Accordingly, Counts V, VI, VII, and IX, and that part of Count IV asserting a claim under Nev. Rev. Stat. § 608.018, are DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
DATED: This 4th day of January, 2017.
/s/_________
UNITED STATES DISTRICT JUDGE