2:21-cv-01312
D. Nev.Apr 30, 2022Background
- Plaintiff Brett Waggoner, Nye County Director of Planning and a homosexual male, alleges defendants Nye County Commissioner Leo Blundo and District Attorney Chris Arabia engaged in discrimination, harassment, and retaliation based on his sexual orientation.
- Allegations against Blundo include circulating Waggoner’s deed to highlight his marriage to another man, urging a reporter to run a story about Waggoner’s marriage, making nepotism accusations, pressuring to have negative material placed in Waggoner’s personnel file, and attempting to get him fired.
- Allegations against Arabia include slowing responses from the DA’s office after taking office, making unspecified negative comments about Waggoner’s sexuality, and filing ethics complaints against Waggoner (after Waggoner filed ethics complaints against Blundo and Arabia).
- Waggoner filed an ethics complaint; the Nevada Commission on Ethics issued confidential letters of caution to Blundo and Arabia; defendants later caused ethics complaints to be filed against Waggoner containing allegedly false accusations.
- Procedural posture: Blundo and Arabia moved to dismiss several claims. The court evaluated §1983 equal protection, interference with prospective economic advantage, intentional infliction of emotional distress (IIED), and defamation, granting, denying, or dismissing claims as described below.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| §1983 Equal Protection (Arabia) | Waggoner alleges discriminatory comments, nepotism accusations, slowed DA responses, and false ethics complaints show intent to discriminate based on sexual orientation. | Arabia says allegations are conclusory and fail to show discriminatory intent tied to sexual orientation. | Dismissed as pleaded; leave to amend to allege facts showing color of state law and discriminatory intent. |
| §1983 Equal Protection (Blundo) | Blundo circulated deed and urged reporter to publicize Waggoner’s marriage as part of discriminatory campaign. | Blundo argues allegations are largely conclusory and don’t plausibly show discriminatory intent. | Partly survives: claim allowed to proceed based on deed circulation and urging reporter to run story; other allegations dismissed with leave to amend. |
| Interference with Prospective Economic Advantage | Waggoner (an at-will employee) says defendants tried to get him fired and interfered with his expected continued employment, causing economic and emotional harm. | Defendants note Waggoner remains employed, so no lost economic benefit; any privilege applies to their conduct. | Dismissed with prejudice: Nevada law requires pecuniary loss to business interests and mental distress alone is insufficient. |
| Intentional Infliction of Emotional Distress (IIED) | Defendants’ false accusations, circulation of deed, and sexual-orientation-based comments caused severe emotional harm. | Defendants contend conduct is not extreme/outrageous and alleged emotional distress is not severe. | Dismissed for failure to plead severe physical or medically verifiable emotional injury; leave to amend as to severity (and to add factual detail on outrageousness). |
| Defamation | Waggoner says ethics complaints and Blundo’s nepotism accusations contained false statements harming his reputation. | Defendants argue statements (especially ethics complaints) are privileged and challengable as a defense. | Dismissed insofar as claim attempts to rely on unspecified statements; claim may proceed only as to the identified ethics-complaint statements because defendants failed to adequately invoke or brief any privilege defense. Leave to amend to identify other statements if any. |
Key Cases Cited
- Kwan v. SanMedica Int’l, 854 F.3d 1088 (9th Cir. 2017) (pleading standard; allegations taken as true at motion to dismiss)
- Navajo Nation v. Dep’t of the Interior, 876 F.3d 1144 (9th Cir. 2017) (court may disregard legal conclusions in pleading review)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
- Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130 (9th Cir. 2003) (elements for equal protection claim)
- Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (leave to amend should be freely given unless futile)
- Wichinsky v. Mosa, 847 P.2d 727 (Nev. 1993) (elements for intentional interference with prospective economic advantage)
- Stalk v. Mushkin, 199 P.3d 838 (Nev. 2009) (prospective-advantage claim seeks pecuniary loss to business interests)
- Miller v. Jones, 970 P.2d 571 (Nev. 1998) (IIED requires severe emotional distress; medical evidence often required)
- Posadas v. City of Reno, 851 P.2d 438 (Nev. 1993) (extreme/outrageousness can be jury question in reputational contexts)
- Lubin v. Kunin, 17 P.3d 422 (Nev. 2001) (privilege is an affirmative defense in defamation and must be properly pled)
- Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097 (9th Cir. 2008) (Rule 8 requires fair notice of claims and the grounds supporting them)