Case Information
UNITED STATES DISTRICT COURT DISTRICT OF NEVADA
Anthony Ruben Aldo Barbieri, Case No.: 2:18-cv-00355-JAD-EJY Plaintiff
Order Granting Motion to Dismiss, v. Denying Remaining Motions as Moot, and
Closing Case Timeshare Liquidators LLC and Stan Mullins,
[ECF Nos. 72, 75, 77, 80, 82, 86, 88, 89] Defendants
Last year, I gave pro se plaintiff Anthony Barbieri another opportunity to plead a hostile- work-environment claim against his former employer, Timeshare Liquidators LLC. The defendants now move to dismiss Barbieri’s resulting amended complaint as inadequately pled. In response, Barbieri filed a countermotion for summary judgment, which largely leans on the allegations in his pleading. Because Barbieri still has not pled any facts that, taken as true, could state a claim for relief, I grant the motion to dismiss, deny all pending motions, and close this case.
Discussion To state a hostile-work-environment claim under Title VII, the plaintiff must plead true facts that show that “(1) [he] was subjected to verbal or physical conduct because of” a protected status, “(2) the conduct was unwelcome, and (3) the conduct was sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive work environment.” Those allegations must go beyond a mere “recital[] of a claim’s elements, supported by only conclusory statements.” [5] When I last dismissed Barbieri’s hostile-work-environment claim, I did so because he failed to detail any conduct that occurred “because of” any category protected by Title VII. [6] Though Barbieri referenced some “abuse” that occurred, I explained that he must include specific details about those incidents in his complaint itself—not in his other briefing. I gave him one more chance—with my detailed instructions—to try to plead a plausible claim.
Barbieri’s fourth and fifth amended complaints do little to cure the problems that I identified in my dismissal order. Barbieri again alleges that he was “singl[ed] [] out” to complete additional tasks, like getting beer for his supervisors—tasks that others were not required to do. But Barbieri’s amended complaint still lacks any facts tying the unfair assignment of these tasks to his membership in a protected class. And much like before, Barbieri’s passing references to harassing behavior only show up in his briefing and not in his complaint. Because the court’s inquiry on a dismissal motion like this one is restricted to the amended complaint, I cannot consider those briefing arguments when determining the pleading’s sufficiency. Doing so wouldn’t help anyway because, even with those additional points, the claim still falls short.
Barbieri’s attempts at alleging a hostile-work-environment claim based on new sexual- harassment allegations fare no better. For the first time, Barbieri alleges in his amended complaint that his supervisors kept a sex toy in a filing cabinet and “once” brought it out while Barbieri was around. He adds that they would sometimes make crude jokes about the toy or have discussions about the supervisors’ sex lives.
There are two problems with Barbieri’s new allegations: they present a new theory under Title VII, in violation of this court’s last dismissal order and, like the rest of his complaint, they fail to relate to his status as a member of a protected class. As the United States Supreme Court explained in Oncale v. Sundowner Offshore Services, Inc. , the statute doesn’t “prohibit all verbal or physical harassment in the workplace; it is directed only at ‘ discriminat[ion] . . . because of . . . sex.’ We have never held that workplace harassment . . . is automatically discrimination because of sex merely because the words used have sexual content or connotations.” These new facts still fail to remedy the problems that I previously identified, so I dismiss this claim.
While I understand the difficulty Barbieri faces in litigating without an attorney, the law requires him to comply with this court’s instructions and rules like any other litigant. Not only did Barbieri file his fourth and fifth amended complaints without curing the deficiencies I outlined in my last dismissal order, he has now begun to file exhibits that he claims substantiate his new allegations that defendant Stan Mullis “is not under sole [sic] kind of fraud investigation” and that one of the employees “was arrested for [m]urder.” These filings only take us farther and farther from a plausible claim. Barbieri’s continued inability to connect the defendants’ conduct to any protected status indicates that leave to amend his complaint again would be a futile exercise that will not result in a viable cause of action. So I dismiss this case with prejudice. And because I close this case, I deny as moot the rest of the motions in the docket.
Conclusion
IT IS THEREFORE ORDERED that the defendants’ motion to dismiss [ECF No. 77] is GRANTED and this case dismissed with prejudice. The Clerk of Court is directed to ENTER JUDGMENT accordingly and CLOSE THIS CASE .
IT IS FURTHER ORDERED that all remaining motions [ECF Nos. 72, 75, 80, 82, 86, 88, 89] are DENIED as moot.
_______________________________ U.S. District Judge Jennifer A. Dorsey April 9, 2021
[1] ECF No. 69.
[2] Ashcroft v. Iqbal , 556 U.S. 662, 678–79 (2009).
[3] The parties are familiar with Barbieri’s factual allegations, which are summarized in ECF No. 69 at 2–4, so I do not repeat them here.
[4] Johnson v. Riverside Healthcare Sys., LP , 534 F.3d 1116, 1122 (9th Cir. 2008) (alteration in original) (citation omitted).
[5] Iqbal , 556 U.S. at 678–79. 20
[6]
[7] 21
[8] See ECF No. 85 at 7. Even if I were to consider the allegation that “he was told to ‘go home . . . to Argentina,’” he has not alleged that this one-time statement was part of an ongoing pattern of conduct that created a hostile-work environment. Johnson , 534 F.3d at 1122 (“A hostile work environment, by its ‘very nature involves repeated conduct.’”).
[9] Lee v. City of Los Angeles , 250 F.3d 668, 688 (9th Cir. 2001).
[10]
[11] Id.
[12] Oncale v. Sundowner Offshore Servs., Inc. , 523 U.S. 75, 80 (1998) (first alteration in original) (citation omitted).
[13] See Am. Ass’n of Naturopathic Physicians v. Hayhurst , 227 F.3d 1104, 1107–08 (9th Cir. 2000).
[14]
[15] Id. at 3.
[16] See Leadsinger, Inc. v. BMG Music Publ’g , 512 F.3d 522, 532 (9th Cir. 2008) (explaining that a court “may deny leave to amend due to . . . ‘repeated failure to cure deficiencies by amendments previously allowed . . . [and] futility of amendment” (citation omitted)).