Barbieri v. Timeshare Liquidators LLC
2:18-cv-00355
D. Nev.Apr 9, 2021Background
- Pro se plaintiff Anthony Barbieri sued his former employer, Timeshare Liquidators LLC, and supervisor Stan Mullins, alleging a hostile-work-environment under Title VII.
- The court previously dismissed Barbieri’s hostile-work-environment claim for failing to plead that the conduct occurred “because of” a protected status and granted leave to amend with detailed instructions.
- Barbieri filed fourth and fifth amended complaints alleging he was singled out for extra tasks (e.g., fetching beer), occasional crude jokes and discussions about supervisors’ sex lives, and that a sex toy was kept in a filing cabinet and once shown around him.
- Defendants moved to dismiss the amended complaint as inadequately pled; Barbieri filed a countermotion for summary judgment that primarily relied on his pleadings and additional exhibits filed later.
- The court limited its review to the amended complaint, found no factual allegations tying the challenged conduct to a protected class or showing severe/pervasive harassment, concluded the new sexual-harassment theory was both new and legally insufficient, and determined further amendment would be futile.
- The court granted the motion to dismiss, dismissed the case with prejudice, denied remaining motions as moot, and closed the case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the amended complaint states a Title VII hostile-work-environment claim | Barbieri: he was singled out for extra tasks and subjected to abusive conduct that created a hostile environment | Defendants: pleading is conclusory and fails to allege the conduct occurred because of a protected status or was sufficiently severe/pervasive | Dismissed — complaint fails to plead that conduct was "because of" a protected class; allegations in briefing not considered |
| Whether new sexual-harassment allegations support a Title VII claim | Barbieri: supervisors kept a sex toy, made crude jokes, discussed sex lives — constitutes sexual harassment | Defendants: new theory raised after prior dismissal and still lacks nexus to discrimination "because of sex" | Dismissed — new sexual allegations insufficient and present a new, untimely theory; Title VII requires harassment be because of sex (Oncale) |
| Whether the court may consider facts submitted outside the complaint on a Rule 12(b)(6) review | Barbieri relied on exhibits and briefing to supply details | Defendants argued court must confine review to the amended complaint | Court limited review to the amended complaint and declined to consider outside allegations on the dismissal motion |
| Whether leave to amend should be granted or denied as futile | Barbieri sought to proceed and submitted additional filings | Defendants argued repeated failures to cure and futility justify dismissal with prejudice | Denied — repeated failure to cure and futility justify dismissal with prejudice; further amendment would not produce a viable claim |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standards require factual allegations beyond conclusory statements)
- Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116 (9th Cir. 2008) (elements of a hostile-work-environment claim)
- Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) (Title VII forbids harassment "because of sex," not all sexual content)
- Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001) (on a dismissal motion the court’s review is confined to the complaint)
- Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522 (9th Cir. 2008) (court may deny leave to amend for repeated failures to cure and for futility)