Buchanan v. Watkins & Letofsky, LLP ( 2019 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 AMY BUCHANAN, ) 4 ) Plaintiff, ) Case No.: 2:19-cv-00226-GMN-VCF 5 vs. ) 6 ) ORDER WATKINS & LETOFSKY, LLP., ) 7 ) Defendant. ) 8 ) 9 10 Pending before the Court is the Motion to Dismiss, (ECF No. 10), filed by Defendant 11 Watkins & Letofsky, LLP (“Defendant”). Plaintiff Amy Buchanan (“Plaintiff”) filed a 12 Response, (ECF No. 11), and Defendant filed a Reply, (ECF No. 12).1 For the reasons 13 discussed herein, Defendant’s Motion is GRANTED in part and DENIED in part. 14 I. BACKGROUND 15 This case arises from Plaintiff’s allegations of workplace discrimination, unpaid wages, 16 and retaliation during her employment as an associate attorney with Defendant, a Nevada law 17 firm. In April 2016, Plaintiff began her employment for Defendant, working on a full-time 18 basis consisting of forty- to sixty-hour workweeks. (Am. Compl. ¶¶ 1, 8, ECF No. 7). 19 Due to injuries sustained in a motor vehicle accident, Plaintiff developed a musculoskeletal 20 condition that causes her stress, anxiety, depression, and migraine headaches, and inhibits her 21 ability to sleep, think clearly, and perform everyday tasks. (Id. ¶ 10). By September 2016, 22 Plaintiff’s medical condition rendered her unable to continue full-time work. (Id. ¶ 9). 23 24 1 In light of Plaintiff’s Amended Complaint, Defendant’s motion to dismiss the initial complaint, (ECF No. 5), is 25 DENIED as moot. See Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (“As a general rule, when a plaintiff files an amended complaint, ‘[t]he amended complaint supercedes the original, the latter being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)). 1 Plaintiff informed Defendant’s management of her disability, as well as an impending 2 surgical procedure that would necessitate a reduced workload or else a leave of absence. (Id. ¶ 3 13). Defendant allegedly refused Plaintiff’s request to modify her work schedule and instead 4 instructed Plaintiff to submit a letter of resignation, which she did on September 2, 2016. (Id.). 5 Plaintiff subsequently worked an additional eight hours as an independent contractor, for which 6 Defendant never compensated her. (Id. ¶ 14). 7 In December 2016, Plaintiff and Defendant entered an agreement under which Plaintiff 8 would return to work on a part-time basis, limiting her workweek to twenty hours. (Id. ¶ 15). 9 Upon her return, Defendant assigned Plaintiff a volume of work that caused her to put in forty- 10 to sixty-hour weeks, despite her only being paid half of what full-time associate attorneys 11 make. (Id. ¶ 16). Plaintiff also alleges Defendant manipulated her billable hour records in order 12 to maintain Plaintiff’s ineligibility for performance-based bonuses. (Id.). 13 On repeated occasions, Defendant represented to Plaintiff that she would be paid for all 14 hours worked beyond the 20 hours per week recommend by Plaintiff’s doctor. (Id. ¶ 17). 15 According to Plaintiff, however, Defendant has consistently declined to pay Plaintiff for her 16 time and instead forced her to rebate prior wages paid. (Id. ¶ 18). After complaining about her 17 workload, Defendant agreed to a compromise under which Plaintiff would work thirty hours a 18 week, beginning in March 2017. (Id. ¶ 19). Defendant allegedly breached this renewed 19 agreement by assigning Plaintiff work requiring up to sixty hours per week. (Id. ¶ 20). 20 In May 2017, Plaintiff again expressed concerns about her workload to Defendant and 21 stated that she needed to focus on her health. (Id. ¶ 21). Against Plaintiff’s wishes, Defendant 22 placed her on a medical leave of absence rather than accommodating her request for a reduced 23 work schedule. (Id.). At Defendant’s request, Plaintiff supplied Defendant with a letter from 24 her doctor delineating her work-related limitations. (Id. ¶ 22). In response, Defendant allegedly 25 1 cancelled her health insurance. (Id. ¶ 23). Once Plaintiff confronted Defendant about the 2 cancellation, Defendant reinstated her health insurance. (Id.). 3 Plaintiff continually demanded her unpaid wages verbally and in writing, to which 4 Defendant assured Plaintiff that she would be compensated. (Id. ¶ 24). Upon determining that 5 her requests were futile, Plaintiff filed a complaint for wages with the Nevada Labor 6 Commissioner (the “Labor Commissioner”). (Id. ¶ 25). On November 16, 2017, after 7 acknowledging it knew of the complaint with the Labor Commissioner, Defendant told Plaintiff 8 that her health insurance would be canceled as of November 30, 2017. (Id.). According to 9 Plaintiff, this “effectively communication that [her] employment was terminated as of that 10 date.” (Id.). 11 The Labor Commissioner ultimately closed its investigation based, in part, on 12 Defendant’s false representations concerning its employment agreements with Plaintiff. (Id.). 13 On September 1, 2018, Plaintiff filed a charge of discrimination under the Americans with 14 Disabilities Act (“ADA”) with the U.S. Equal Employment Opportunity Commission. (Id. ¶ 15 28). 16 Plaintiff filed the instant Amended Complaint (the “Complaint”) on March 1, 2019, 17 bringing the following causes of action arising from her employment with Defendant and her 18 subsequent termination: (1) breach of contract; (2) breach of the implied covenant of good faith 19 and fair dealing; (3) violation of NRS 608.190; (4) wages due and owing under NRS 608.020– 20 NRS 608.050; (5) tortious discharge; (6) discrimination in violation of the ADA; and (7) 21 unlawful ADA retaliation. (Id. ¶¶ 31–101). On March 22, 2019, Defendant filed the present 22 Motion to Dismiss, (ECF No. 10), seeking dismissal of Plaintiff’s third, fourth, and fifth causes 23 of action. 24 25 1 II. LEGAL STANDARD 2 Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon 3 which relief can be granted. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 4 555 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on 5 which it rests, and although a court must take all factual allegations as true, legal conclusions 6 couched as factual allegations are insufficient. Twombly, 550 U.S. at 555. Accordingly, Rule 7 12(b)(6) requires “more than labels and conclusions, and a formulaic recitation of the elements 8 of a cause of action will not do.” Id. “To survive a motion to dismiss, a complaint must contain 9 sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” 10 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has 11 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 12 reasonable inference that the defendant is liable for the misconduct alleged.” Id. This standard 13 “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. 14 “Generally, a district court may not consider any material beyond the pleadings in a 15 ruling on a Rule 12(b)(6) motion.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 16 1542, 1555 n.19 (9th Cir. 1990). “However, material which is properly submitted as part of the 17 complaint may be considered.” Id. Similarly, “documents whose contents are alleged in a 18 complaint and whose authenticity no party questions, but which are not physically attached to 19 the pleading, may be considered in a Ruling on a Rule 12(b)(6) motion to dismiss. Branch v. 20 Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). On a motion to dismiss, a court may also take 21 judicial notice of “matters of public record.” Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 22 (9th Cir. 1986). Otherwise, if a court considers materials outside of the pleadings, the motion 23 to dismiss is converted into a motion for summary judgment. Fed. R. Civ. P. 12(d). 24 If the court grants a motion to dismiss for failure to state a claim, leave to amend should 25 be granted unless it is clear that the deficiencies of the complaint cannot be cured by 1 amendment. DeSoto v. Yellow Freight Syst., Inc., 957 F.2d 655, 658 (9th Cir. 1992). Pursuant 2 to Rule 15(a), the court should “freely” give leave to amend “when justice so requires,” and in 3 the absence of a reason such as “undue delay, bad faith or dilatory motive on the part of the 4 movant, repeated failure to cure deficiencies by amendments previously allowed, undue 5 prejudice to the opposing party by virtue of allowance of the amendment, futility of the 6 amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). 7 III. DISCUSSION 8 Defendant moves to dismiss three of Plaintiff’s claims, advancing the following 9 arguments in support: (a) NRS 608.190 does not confer a private right of action and therefore 10 Plaintiff cannot, as a matter of law, bring a claim under this provision; (b) Plaintiff fails to state 11 a claim under NRS 608.020–050 because she does not allege that Defendant terminated her; 12 and (c) the tortoius discharge claim is not cognizable under Nevada law because of the 13 availability of alternative statutory remedies and the private, rather than public nature of 14 Plaintiff’s complaint with the Labor Commissioner. (See Mot. to Dismiss (“MTD”) 6:21– 15 13:28, ECF No. 10). The Court addresses each argument in turn. 16 A. NRS 608.190 17 NRS 608.190 prohibits a person from willfully refusing or neglecting “to pay the wages 18 due and payable when demanded as provided in [NRS Chapter 608].” The parties dispute 19 whether NRS 608.190 confers a private right of action. (MTD 6:21–9:3); (Pl.’s Resp. (“Resp.”) 20 11:18–13:24, ECF No. 11). Because the Nevada Supreme Court has not addressed this 21 question, this Court must predict how the Nevada Supreme Court would decide the issue. 22 Arizona Elec. Power Co-op., Inc. v. Berkeley, 59 F.3d 988, 991 (9th Cir. 1995). As articulated 23 below, the Nevada Supreme Court’s decision in Neville v. Eighth Judicial Dist. Court in & for 24 Cty. of Clark, 406 P.3d 499, 502 (Nev. 2017), convinces this Court that NRS 608.190 confers a 25 private right of action. 1 1. Implied Private Right of Action under NRS Chapter 608 2 In Neville, the Nevada Supreme Court held that “NRS Chapter 608 provides a private 3 right of action for unpaid wages.” Id. at 500. At issue in that case was whether the plaintiff’s 4 NRS Chapter 608 (“Chapter 608”) claims for “unpaid wages under NRS 608.016 (payment for 5 each hour worked), NRS 608.018 (payment for overtime), and NRS 608.020 through NRS 6 608.050 (payment upon termination),” provide for a private judicial remedy or may only be 7 enforced by the Labor Commissioner. Id. at 500–01. 8 The Supreme Court commenced its analysis by noting that Chapter 608 is silent as to 9 whether a private right of action exists. Id. at 502. Indeed, the Court continued, NRS 608.180 10 appears to answer the question by expressly vesting enforcement with the Labor Commissioner 11 rather than the courts. Id. (citing NRS 608.180) (“The Labor Commissioner or [her 12 representative] shall cause the provisions of NRS 608.005 to 608.195, inclusive, and 608.215 to 13 be enforced.”). Nevertheless, the Nevada Supreme Court recognized that an implied right of 14 action may be inferred from Chapter 608’s statutory scheme. Id. at 502–3. 15 The Court looked to NRS 608.140, which states that an “employee” suing for “wages 16 earned and due” may recover a “reasonable attorney fee.” Id. at 503. Because this provision 17 expressly permits recovery of attorneys’ fees, the Neville Court determined that the legislature 18 intended to codify a private judicial remedy for unpaid-wage claims under Chapter 608. See id. 19 at 504 (“It would be absurd to think that the Legislature intended a private cause of action to 20 obtain attorney fees for an unpaid wages suit but no private cause of action to bring the suit 21 itself.”).2 In doing so, the Court permitted the plaintiff’s claims for NRS 608.016, NRS 22 23 2 Neville’s holding reaffirmed the Court’s prior observation in a previous case concerning private rights of action 24 under Chapter 608. See Baldonado v. Wynn Las Vegas, LLC, 194 P.3d 96, 104 n.33 (Nev. 2008) (“[A] private cause of action to recover unpaid wages is entirely consistent with the express authority under NRS 608.140 to 25 bring private actions for wages unpaid and due.”). 1 608.018, and NRS 608.020–050 to proceed because they “involve allegations that wages were 2 unpaid and due to him,” and were linked to NRS 608.140 in the complaint. Id. 3 2. Neville and NRS 608.190 4 Here, in light of the Neville decision, this Court predicts that the Nevada Supreme Court 5 would treat NRS 608.190 as conferring a private right of action. Like the Chapter 608 6 provisions before the Neville Court, NRS 608.190 concerns unpaid wages, specifically wages 7 willfully or neglectfully denied to an employee when so demanded. Because NRS 608.190 is 8 found within the same Chapter as the provision for recovery of attorneys’ fees, NRS 608.140, it 9 follows that Neville’s holding extends to NRS 608.190, thus conferring an implied private right 10 of action. Moreover, as was the case in Neville, Plaintiff ties her NRS 608.190 claim to NRS 11 608.140 in her Complaint. (See Am. Compl. ¶ 30); Neville, 406 P.3d at 504. 12 Notwithstanding Neville, Defendant argues that NRS 608.190 was intended to authorize 13 enforcement solely by the Labor Commissioner. (MTD 6:21–9:16). Defendant points to the 14 statute’s pre-1985 version, which expressly contemplated prosecution by the district attorney or 15 Labor Commissioner for Chapter 608 violations. (Id. 8:1–8:21). Defendant also contends that 16 because NRS 608.195 was amended to include misdemeanor penalties for violations of NRS 17 608.005 to 608.190, inclusive, the existence of a private right of action under NRS 608.190 18 would be inconsistent with the availability of these criminal remedies. (Id. 8:15–9:16). The 19 Court is unpersuaded. 20 Beginning with the statute’s pre-1985 version and its express mention of enforcement by 21 the Labor Commissioner and district attorney, the Court disagrees that this legislative history 22 militates in favor of Defendant’s position. Rather, the Court tends to agree with Plaintiff that 23 the legislature’s removal of this language more plausibly suggests an intent to expand 24 enforcement power beyond the Labor Commissioner and district attorney. See Dep’t of 25 Taxation v. Daimler Chrysler Servs. N. Am., LLC, 119 P.3d 135, 139 (Nev. 2005) 1 (“[O]missions of subject matters from statutory provisions are presumed to have been 2 intentional.”); see also Coast Hotels & Casinos, Inc. v. Nevada State Labor Comm’n, 34 P.3d 3 546, 551 (Nev. 2001) (analyzing the impact of the legislature’s deletion of statutory language 4 through amendment). 5 As for Chapter 608’s inclusion of criminal remedies, this does not foreclose a finding 6 that the statutory scheme also provides private, parallel civil remedies. Indeed, the presence of 7 misdemeanor penalties did not preclude the Neville Court from construing Chapter 608 as 8 conferring a private right of action for various sections of that Chapter. Defendant does not 9 advance—and the Court cannot discern—any compelling reason as to why the legislature 10 would have intended to limit NRS 608.190 to criminal enforcement while endorsing private 11 civil enforcement with respect to other unpaid-wage provisions in Chapter 608. 12 In summary, the Court predicts the Nevada Supreme Court would recognize NRS 13 608.190 as conferring a private right of action as a logical outgrowth of the Neville decision. 14 Defendant fails to convince the Court otherwise, particularly because Defendant’s preferred 15 interpretation, if adopted, would apply equally to all provisions in Chapter 608. Such an 16 interpretation is foreclosed by Neville. Accordingly, the Court denies Defendant’s Motion to 17 Dismiss as to this cause of action. Plaintiff’s NRS 608.190 claim survives. 18 B. NRS 608.020–050 19 NRS 608.020, which governs wages due upon termination, provides that “[w]henever an 20 employer discharges an employee, the wages and compensation earned and unpaid at the time 21 of such discharge shall become due and payable immediately.” NRS 608.030, which applies to 22 payment upon resignation, prescribes a timeframe under which an employer must provide 23 wages and compensation earned and unpaid. NRS 608.040 and NRS 608.050 provide distinct 24 penalties for an employer’s failure to pay wages due once an employee quits, resigns, or is 25 discharged. 1 Defendant argues that Plaintiff’s allegations do not support a claim for violation of NRS 2 608.020, or its corresponding penalty under NRS 608.050, because Plaintiff does not allege 3 Defendant terminated her. (MTD 10:9–15). According to Defendant, Plaintiff is only entitled 4 to pursue a claim for unpaid wages upon resignation under NRS 608.030, a cause of action 5 Plaintiff pleads in the alternative. (Id. 10:16–19). 6 Contrary to Defendant’s contention, Plaintiff alleges that “[o]n or about November 16, 7 2017, the Defendants terminated Plaintiff’s employment and discharged her.” (Am. Compl. ¶ 8 6). The Court recognizes that a paragraph in the Complaint appears to imply that Plaintiff 9 resigned, although this is not expressly alleged. (See id. ¶ 25) (alleging Defendant told Plaintiff 10 that “it was cancelling her health insurance as of November 30, 2017 which effectively 11 communicated that the Plaintiff’s employment was terminated as of that date.”). Nevertheless, 12 the remainder of the Complaint repeatedly states that Defendant terminated Plaintiff. (See id. ¶¶ 13 26, 28, 53, 57–58, 62, 90, 94, 100). While Defendant characterizes these allegations as “bare 14 bones,” the Court finds them to be enough at this stage of the proceedings. See, e.g., Sheppard 15 v. David Evans & Assoc., 694 F.3d 1045, 1049 (9th Cir. 2012) (finding similar allegations 16 sufficient to establish the “discharge” prong of unlawful termination based upon age 17 discrimination). The Court therefore denies Defendant’s Motion with respect to this claim. 18 C. Tortious Discharge 19 In Nevada, an employer may generally terminate an at-will employee for any reason 20 without being subject to liability for wrongful discharge. Smith v. Cladianos, 752 P.2d 233, 234 21 (Nev. 1988). However, Nevada recognizes a narrow exception to this rule where an employer 22 discharges an employee for a reason which violates a strong public policy of the state. 23 D’Angelo v. Gardner, 819 P.2d 206, 216 (Nev. 1991). To prevail on a tortious discharge claim 24 in Nevada, a plaintiff must establish that she: (1) was terminated by her employer for reasons 25 that “violate[] strong and compelling public policy”; and (2) is without “an adequate, 1 comprehensive, statutory remedy.” Ozawa v. Vision Airlines, Inc., 216 P.3d 788, 791 (Nev. 2 2009). 3 Prior to addressing the parties’ arguments, the Court first discusses the scope of the 4 public policy exception to the at-will doctrine in Nevada. 5 1. Public Policy Exceptions to Nevada’s At-Will Employment Doctrine 6 While the Nevada Supreme Court has carved out exceptions to the at-will doctrine, the 7 Court has repeatedly counseled that such exceptions are “severely limited” to “rare and 8 exceptional cases.” See Sands Regent v. Valgardson, 777 P.2d 898, 900 (Nev. 1989); Hansen v. 9 Harrah’s, 675 P.2d 394, 396 (Nev. 1984) (“[T]he at-will employment rule is subject to limited 10 exceptions . . . .”); Cladianos, 752 P.2d at 235 (“We severely restricted the tort remedy . . . to 11 those rare and exceptional instances where the employer’s conduct goes well beyond the 12 bounds of ordinary breach of contract liability.”); Bigelow v. Bullard, 901 P.2d 630, 632 (Nev. 13 1995) (“This apparent exception to the at-will rule is a narrow one.”). 14 The Nevada Supreme Court first introduced the public policy exception to the at-will 15 doctrine in Hansen v. Harrah’s, in which the Court recognized a tortious discharge claim based 16 on an employee’s termination in retaliation for filing a worker’s compensation claim. 675 P.2d 17 at 396–97. The Court reasoned that “Nevada’s workmen’s compensation laws reflect a clear 18 public policy favoring economic security for employees injured while in the course of their 19 employment.” Id. at 396. This consideration, coupled with the absence of an existing, 20 comprehensive statutory remedy, warranted a “narrow exception to the at-will employment 21 rule.” Id. at 397; see also Dillard Dep’t Stores, Inc. v. Beckwith, 989 P.2d 882, 885 (Nev. 1999) 22 (reaffirming Hansen and Nevada’s public policy favoring “economic security for employees 23 injured while in the course of their employment”). 24 Since Hansen, the Nevada Supreme Court has recognized public policy exceptions to the 25 at-will doctrine in two categories of cases. Under one line of cases, a tortious discharge claim 1 is properly asserted where an “employee, in opposition to the employer’s directions or policies, 2 does something or refuses to do something that public policy entitles or empowers the 3 employee to do or not to do.” Bigelow, 901 P.2d at 634 (emphasis in original); see, e.g., 4 D’Angelo, 819 P.2d at 216 (“[I]t is violative of public policy for an employer to dismiss an 5 employee for refusing to work under conditions unreasonably dangerous to the employee.”); 6 Allum v. Valley Bank, 970 P.2d 1062, 1068 (Nev. 1998) (“A claim for tortious discharge should 7 be available to an employee who was terminated for refusing to engage in conduct that he, in 8 good faith, reasonably believed to be illegal.”). 9 Under a second series of cases, the Nevada Supreme Court has endorsed a 10 “whistleblower” exception to the at-will doctrine. See Wiltsie v. Baby Grand Corp., 774 P.2d 11 432, 433 (Nev. 1989). Under this exception, a tortious discharge claim may arise from an 12 employee’s termination for reporting illegal conduct of an employer when the complained-of 13 conduct frustrates Nevada’s ability to enforce laws of the state. See, e.g., id. (holding tortious 14 discharge claim is viable where a casino employee reports his employer’s illegal gaming 15 activity because Nevada’s public policy strongly favors enforcement of gaming laws); Clark v. 16 Columbia/HCA Info. Servs., Inc., 25 P.3d 215, 221 (Nev. 2001) (stating that a doctor reporting 17 a hospital’s violations of medical standards is “protect[ed] as a matter of public policy as 18 whistleblowing.”); Reuber v. Reno Dodge Sales, Inc., No. 61602, 2013 WL 7158571, at *1 19 (Nev. Nov. 1, 2013) (unpublished) (“An employee’s decision to expose illegal or unsafe 20 practices should be encouraged to the extent he seeks to further the public good rather than 21 private or proprietary interests.”). 22 Beyond these recognized exceptions, the Nevada Supreme Court has routinely declined 23 to adopt new exceptions, thus reinforcing the limited range of public policy tortious discharge 24 claims. See, e.g., Brown v. Eddie World, Inc., 348 P.3d 1002, 1004 (Nev. 2015) (rejecting third- 25 party retaliatory discharge theory on the grounds that it would expand the doctrine of tortious 1 discharge beyond its narrow scope); Chavez v. Sievers, 43 P.3d 1022, 1028 (Nev. 2002) (“[W]e 2 decline to recognize a public policy exception to the employment at-will doctrine based on race 3 discrimination with respect to small employers.”); Valgardson, 777 P.2d at 900 (declining to 4 recognize an additional exception to the at-will doctrine for age discrimination); Ainsworth v. 5 Newmont Min. Corp., 381 P.3d 588, 2012 WL 987222, at *3 (Nev. Mar. 20, 2012) 6 (unpublished) (“[W]e are not compelled to extend the grounds for a whistleblowing claim 7 beyond the limits set forth in Wiltsie.”). 8 Similarly, federal courts interpreting Nevada law have narrowly construed Nevada 9 Supreme Court precedent on tortious discharge and have expressed reluctance to predict new 10 exceptions to the at-will doctrine. See, e.g., Law v. Kinross Gold U.S.A., Inc., 651 F. App’x 11 645, 649 (9th Cir. 2016) (“[Plaintiff] has failed to show that this is the kind of rare and 12 exceptional case . . . sufficient to state a cause of action cognizable under Nevada law.”); 13 Kersey v. Costco Wholesale Corp., 210 F. App’x 561, 562 (9th Cir. 2006) (“The Nevada 14 Supreme Court has never held that a private employer who discharges an employee for 15 exercising her constitutional right to access the courts is liable for tortious discharge.”); Finn v. 16 City of Boulder City, No. 2:14-cv-01835-JAD-GWF, 2018 WL 473001, at *8 (D. Nev. Jan. 17, 17 2018) (“Finn does not attempt to show that Hansen—or any other Nevada authority—supports 18 the notion that his termination is one of the ‘rare and exceptional cases’ in which the 19 termination of an at-will employee is actionable in tort.”); Tschirhart v. Reg’l Transp. Comm’n 20 of Washoe Cty., No. 3:11-cv-00281-RCJ-WGC, 2012 WL 1684596, at *5 (D. Nev. May 11, 21 2012) (“[I]t would be inappropriate for this Court to anticipate the creation of any new 22 exception where the Nevada Supreme Court has not spoken to the specific issue, at least in 23 dicta.”). 24 Against this backdrop, the Court examines Plaintiff’s theories of liability with respect to 25 her tortious discharge claim. 1 2. Plaintiff’s Tortious Discharge Cause of Action 2 Plaintiff’s tortious discharge claim is premised upon Defendant discharging her after 3 discovering that Plaintiff filed an unpaid-wages complaint to the Labor Commissioner. (See 4 Am. Compl. ¶ 57). Alternatively, Plaintiff contends that her complaint to the Labor 5 Commissioner was an act of whistleblowing, by which she informed the proper governmental 6 agency of her reasonable belief that Defendant was in violation of the law and faced retaliation 7 as a result. (Id.); (Resp. 15:6–9). As explained below, neither of Plaintiff’s theories find 8 support under Nevada law. 9 As to Plaintiff’s first theory, the Court predicts that the Nevada Supreme Court would 10 decline to adopt an additional exception to the at-will doctrine. As discussed, Nevada law only 11 recognizes limited, narrow exceptions to the at-will doctrine. Retaliation for filing a complaint 12 for unpaid wages does not fit comfortably into any established exception. Plaintiff’s claim does 13 not implicate Nevada’s strong public policy supporting the rights of employees injured on the 14 job, so the Hansen exception does not apply. See State Indus. Ins. Sys. v. Campbell, 862 P.2d 15 1184, 1186 (Nev. 1993) (“Our decision in favor of the employees in [Hansen] was in accord 16 with our “long-standing policy. . . to liberally construe [Nevada’s workers’ compensation laws] 17 to protect injured workers and their families.”). Nor does the “refusal to violate public policy” 18 exception apply, because there are no allegations that Plaintiff either did, or refused to do, 19 something in violation of public policy at Defendant’s direction. See Bigelow, 901 P.2d at 635; 20 D’Angelo, 819 P.2d at 215–18; see also Bielser v. Prof’l Sys. Corp., 321 F. Supp. 2d 1165, 21 1171 (D. Nev. 2004) (explaining that Bigelow and D’Angelo “involve[] a refusal to engage in 22 conduct contrary to public policy”). 23 Turning to the whistleblower exception, Plaintiff contends that “reporting unlawful 24 activity to a state government agency, the Labor Commissioner in this case, constitutes whistle 25 blowing activity that is protected from retaliatory discharge under Nevada common law.” 1 (Resp. 15:6–9). Defendant disagrees, arguing Plaintiff’s decision to file a complaint with the 2 Labor Commissioner implicates Plaintiff’s private interests rather than public policy. (MTD 3 13:8–28). The Court agrees with Defendant. 4 The at-will exception for whistleblower retaliation must emanate from an employee’s act 5 of reporting illegal conduct in furtherance of the “public good,” rather than an employee’s 6 “private or proprietary” interests. See Wiltsie, 774 P.2d at 433 (“So long as employees’ actions 7 are not merely private or proprietary, but instead seek to further the public good, the decision to 8 expose illegal or unsafe practices should be encouraged.”) (quoting Wagner v. City of Globe, 9 722 P.2d 250, 257 (Ariz. 1986)). In Wiltsie, the Court found the plaintiff’s act of 10 whistleblowing concerned only private interests rather than those of the public because the 11 plaintiff reported illegal conduct to his supervisors, rather than to external authorities. Id. 12 While the Wiltsie Court did not further demarcate the line between public policy and private 13 interests, the cases the Court cited with approval shed light on the distinction. See Wagner, 722 14 P.2d at 257 (“[W]e conclude that on balance actions which enhance the enforcement of our 15 laws or expose unsafe conditions, or otherwise serve some singularly public purpose, will inure 16 to the benefit of the public.”); Zaniecki v. P.A. Bergner & Co. of Illinois, 493 N.E.2d 419, 422 17 (Ill. 1986) (noting the “[Illinois] Supreme Court has shown little willingness to find violations 18 of public policy where the discharge arises out of a purely private relationship,” such as an 19 “internal employment dispute”). 20 Here, Plaintiff’s act of filing a complaint with the Labor Commissioner concerned her 21 dispute with Defendant over wages due rather than the public interest. Per Plaintiff’s 22 allegations, she filed with the Labor Commissioner to vindicate her private interests, namely, to 23 recoup her unpaid wages. (See Am. Compl. ¶ 25) (“Plaintiff, after it became apparent that 24 Defendant was not going to pay her outstanding wages due, filed a complaint for wages with 25 the Nevada Labor Commissioner[.]”). The authorities Plaintiff relies upon, Allum and Wiltsie, 1 do not support Plaintiff’s theory as the whistleblowing in those cases concerned employer 2 illegality and the harm borne by third parties, such as the government or public at large. See 3 Allum, 970 P.2d at 1066–67 (applying whistleblower exception where a bank fired a loan 4 officer for informing the Federal Housing Administration of the bank’s scheme to avoid 5 compliance with FHA rules and regulations governing loans); Wiltsie, 774 P.2d at 433–34 6 (recognizing Nevada’s whistleblower exception protects a casino employee’s reporting of 7 illegal gaming conduct because Nevada public policy supports the state’s efforts to enforce 8 Nevada gaming law). In this case, by contrast, Plaintiff’s efforts to recover her unpaid wages is 9 based on Defendant’s harms to her, not to the general public. Under these circumstances, and 10 in light of Wiltsie’s distinction between matters of public policy and private interest, the Court 11 is unconvinced that the Nevada Supreme Court would find that the whistleblower exception to 12 the at-will doctrine governs this case. 13 In short, this Court predicts the Nevada Supreme Court would neither find that this case 14 fits an existing exception to the at-will employment doctrine, nor compels adoption of an 15 additional exception. Given the Nevada’s Supreme Court’s guarded approach to public policy 16 exceptions to the at-will doctrine, this Court is hesitant to recognize exceptions absent 17 compelling reasons to do so. See Taylor v. Louisiana Pac. Corp., 165 F.3d 36, 1998 WL 18 822745, at *3 (9th Cir. Nov. 17, 1998) (unpublished) (declining to recognize a new public 19 policy exception to Nevada’s at-will doctrine and explaining “[a]s a federal court ruling on 20 state law, we feel no duty to be in the vanguard in changing the state law.”) (quoting Brown v. 21 Link Belt Corp., 565 F.2d 1107, 1111 (9th Cir. 1977)); see also Clemens v. DaimlerChrysler 22 Corp., 534 F.3d 1017, 1024 (9th Cir. 2008) ( “[A] federal court sitting in diversity is not free to 23 create new exceptions” to a state law doctrine, particularly where that state’s courts have 24 “painstakingly established the scope”). On the facts presented here, the Court finds it 25 improbable that the Nevada Supreme Court would count this action as among the “rare and 1 exceptional cases,” warranting an exception to the at-will doctrine. See Valgardson, 777 P.2d at 2 900. Therefore, the Court grants Defendant’s Motion to Dismiss as it pertains to tortious 3 discharge. And because this claim fails as a matter of law, the Court finds that amendment 4 would be futile. See Carvalho v. Equifax Info. Servs., LLC, 615 F.3d 1217, 1232 (9th Cir. 5 2010). Accordingly, Plaintiff’s tortious discharge claim is dismissed with prejudice. 6 IV. CONCLUSION 7 IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss, (ECF No. 10), is 8 GRANTED in part and DENIED in part. Defendant’s Motion is GRANTED as to the claim 9 for tortious discharge. The Motion is DENIED with respect to the claims under NRS 608.190 10 and NRS 608.020–050. 11 IT IS FURTHER ORDERED that Plaintiff’s tortious discharge claim is DISMISSED 12 with prejudice. Plaintiff’s claims under NRS 608.190 and NRS 608.020–050 survive. 13 IT IS FURTHER ORDERED that Defendant’s prior Motion to Dismiss, (ECF No. 5), 14 is DENIED as moot. 15 DATED this _1_5__ day of August, 2019. 16 17 ___________________________________ Gloria M. Navarro, Chief Judge 18 United States District Court 19 20 21 22 23 24 25