NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 11 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOVANNY MAYORGA, No. 23-15807
Plaintiff-Appellant, D.C. No.
2:21-cv-02105-JCM-NJK
v.
DIET CENTER LLC, DBA Heart Attack MEMORANDUM*
Grill,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted April 9, 2024**
Pasadena, California
Before: MURGUIA, Chief Judge, and MENDOZA and DE ALBA, Circuit
Judges.
Jovanny Mayorga appeals from the district court’s grant of summary
judgment in favor of Diet Center, LLC, d/b/a Heart Attack Grill (“HAG”) in his
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
employment discrimination action. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo. John Doe 1 v. Abbott Lab’ys, 571 F.3d 930, 933 (9th Cir.
2009). We affirm.
1. Even though the First Amended Complaint (“FAC”) alleges that HAG
“terminated” Mayorga, the allegations of constructive discharge are apparent on
the face of the FAC. Accordingly, the district court erred by failing to recognize
that Mayorga was alleging constructive discharge due to a hostile work
environment and by granting summary judgment under a termination theory. Pa.
State Police v. Suders, 542 U.S. 129, 139 n.5 (2004) (summarizing the appeals
court’s holding that the district court erred in failing to recognize that the plaintiff
had stated a claim of constructive discharge due to the hostile work environment
where the allegations of constructive discharge were apparent on the face of the
plaintiff’s pleading); see also Draper v. Coeur Rochester, Inc., 147 F.3d 1104,
1110 (9th Cir. 1998) (explaining that “[c]onstructive discharge is, indeed, just one
form of wrongful discharge” because “[t]he fact that the actual act of terminating
employment is initiated by the employee, who concludes that she is compelled to
leave as a result of the employer’s actions, rather than by the employer directly
does not change the fact that the employee has been discharged”).
The use of the slur was reprehensible. Even so, summary judgment was still
appropriate. For a single incident of harassment to support a claim of hostile work
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environment, “it must be extremely severe.” Fried v. Wynn Las Vegas, LLC, 18
F.4th 643, 648 (9th Cir. 2021) (citation and internal quotation marks omitted). The
conduct alleged here is neither as severe nor as pervasive as compared to other
cases where an employer’s actions were deemed insufficient to create a hostile
work environment. See, e.g., Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1110–11
(9th Cir. 2000) (finding no hostile work environment where the supervisor referred
to females as “castrating bitches,” “Madonnas,” or “Regina” in front of plaintiff on
several occasions and directly called plaintiff “Medea”); Manatt v. Bank of Am.,
NA, 339 F.3d 792, 798–99 (9th Cir. 2003) (finding that the actions of co-workers
generally fell “into the simple teasing and offhand comments category of non-
actionable discrimination” and therefore no hostile work environment where co-
workers mocked plaintiff for mispronouncing a word and “pulled their eyes back
with their fingers in an attempt to imitate or mock the appearance of Asians” but
such actions were directed at plaintiff only on a couple of occasions); Vasquez v.
Cnty. of Los Angeles, 349 F.3d 634, 642–43 (9th Cir. 2003) (finding no hostile
environment discrimination where the employee was told that he had “a typical
Hispanic macho attitude,” that he should work in the field because “Hispanics do
good in the field” and where he was yelled at in front of others).
Having failed to sufficiently allege a hostile work environment claim,
Mayorga also cannot sufficiently establish “the graver claim of hostile-
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environment constructive discharge.” Suders, 542 U.S. at 149. Because we may
affirm on any ground supported by the record, Cruz v. Nat’l Steel & Shipbuilding
Co., 910 F.3d 1263, 1270 (9th Cir. 2018), we conclude summary judgment was
still appropriate on Mayorga’s Title VII employment discrimination claim.
2. The district court did not err in determining that Mayorga’s negligent
hiring, training, and supervision claim was preempted. “The Supreme Court of
Nevada has recognized that NRS § 613.330 ‘provides the exclusive remedy for tort
claims premised on illegal employment practices.’” Doe No. 1 v. Wynn Resorts,
Ltd., No. 2:19-cv-1904, 2023 WL 1782439, at *18 (D. Nev. Feb. 3, 2023) (quoting
Williams v. Aria Resort & Casino, LLC, No. 2:17-cv-1484-JCM-VCF, 2019 WL
2716765, at *8 (D. Nev. June 28, 2019) (collecting cases)). Here, Mayorga’s claim
is based on the same allegations underlying his Title VII discrimination claim, so it
is preempted, id., and the district court’s grant of summary judgment on this claim
is affirmed.
AFFIRMED.
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