Nixon v. Mohave County Public Works Department et al

Filing 59

ORDER, Defendant's motion for summary judgment 53 is granted; the Clerk shall enter judgment dismissing plaintiff's complaint with prejudice. Signed by Judge H Russel Holland on 4/21/15.(REW)

WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

THEODORE E. NIXON,

)
)
Plaintiff,
)
)
vs.
)
)
MOHAVE COUNTY PUBLIC WORKS
)
DEPARTMENT, et al.,
)
)
Defendants.
)
__________________________________________)

No. 3:14-cv-8031-HRH
(Prescott Division)

ORDER
Motion for Summary Judgment
Defendant Mohave County moves for summary judgment.1

This motion is

opposed.2 Oral argument was requested but is not deemed necessary.

1

Docket No. 53.

2

Docket No. 55. Plaintiff, who is proceeding pro se, filed his opposition prior to the
court giving him notice regarding proceedings on motions for summary judgment. On
March 20, 2015, the court gave plaintiff such notice and gave plaintiff until April 6, 2015 to
file an amended response. Order re Case Status, Docket No. 57. Plaintiff did not file an
amended response.
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Facts
Plaintiff is Theodore E. Nixon. Defendant is Mohave County, Public Works
Department.3
Plaintiff was hired by defendant as an engineering manager. Steven Latoski, the
Public Works Director for defendant, selected plaintiff for the position, with the approval
of Ray Osuna, defendant’s Director of Human Resources.4

Plaintiff was an at-will

employee and was subject to a 6-month probationary period when he began his
employment on July 15, 2013.5
Plaintiff had use of a Mohave County vehicle, which was not to be used for personal
travel. Latoski contends that plaintiff told him on August 7, 2013 that he “drove his
County-issued vehicle on occasion to the Avi Casino in Laughlin, Nevada.”6 Latoski avers
that he told plaintiff “that doing so was a violation of Mohave County rules and policies.”7

3

The other defendants were dismissed on August 20, 2014. Order re Motion to
Dismiss at 9, Docket No. 34.
4

Affidavit of Steven P. Latoski at 2, ¶¶ 6-7, Exhibit 1, Defendant Mohave County’s
Statement of Facts in Support of its Motion for Summary Judgment, Docket No. 54.
5

Id. at 2, ¶¶ 8-9; Deposition of Theodore E. Nixon at 24:21-25:25, Exhibit 2, Defendant
Mohave County’s Statement of Facts in Support of its Motion for Summary Judgment,
Docket No. 54.
6

Latoski Affidavit at 3, ¶ 13, Exhibit 1, Defendant Mohave County’s Statement of
Facts in Support of its Motion for Summary Judgment, Docket No. 54.
7

Id.
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Plaintiff testified that he drove his County-issued vehicle to the car wash and convenience
store that was next to the casino and that sometimes he would go have breakfast or lunch
at the casino while his vehicle was being washed.8 Plaintiff testified that he asked Latoski
if there was a problem with this and Latoski replied “No, there’s nothing wrong with it, but
he wouldn’t do it himself because of perception.”9 The GPS monitoring device on
plaintiff’s County-issued vehicle showed that he made ten trips to the Avi Casino vicinity
during his employment.10
Vickie Holcomb was plaintiff’s administrative assistant. Plaintiff testified that his
relationship with Holcomb was “strained right from the get-go.”11 Plaintiff testified that
Latoski warned him that Holcomb was having trouble with one of the janitors and that
Latoski told him to “[d]eal with it as best you can.”12 Plaintiff testified that he spoke with
Holcomb at one point about how she was treating the janitor (Alexis McKenna) and

8

Nixon Deposition at 28:15-23; 31:20-25, Exhibit 2, Defendant Mohave County’s
Statement of Facts in Support of its Motion for Summary Judgment, Docket No. 54.
9

Id. at 31:3-17.

10

Exhibit B, Latoski Affidavit, Exhibit 1, Defendant Mohave County’s Statement of
Facts in Support of its Motion for Summary Judgment, Docket No. 54. Exhibit B shows that
the GPS report for plaintiff’s vehicle was ran on August 9, 2013 at 4:30 p.m.
11

Nixon Deposition at 34:4-7, Exhibit 2, Defendant Mohave County’s Statement of
Facts in Support of its Motion for Summary Judgment, Docket No. 54.
12

Id. at 34:11-35:4.
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advised her that she had to treat everyone professionally.13 Plaintiff testified that Holcomb
“bullied” McKenna and that McKenna came to him in tears one morning because of how
Holcomb was treating her.14
Holcomb avers that she “felt that [plaintiff] was making unwelcome and unwanted
sexual and harassing advances toward” her by “standing too closely to her” and “winking”
at her.15 Holcomb avers that she told her former supervisor about the situation and he in
turn spoke to Latoski.16 Holcomb further avers that on August 8, 2013, Latoski called her
to his office to discuss her concerns and she told Latoski that plaintiff was also making two
other Mohave County employees uncomfortable.17 Holcomb avers that Latoski told her
to file an Employee Grievance form,18 which she did.19

13

Id. at 37:1-8.

14

Id. at 35:6-11.

15

Affidavit of Vickie Holcomb at 2, ¶¶ 3-5, Exhibit 4, Defendant Mohave County’s
Statement of Facts in Support of its Motion for Summary Judgment, Docket No. 54.
16

Id. at ¶ 6.

17

Id. at ¶¶ 7 & 9.

18

Id. at ¶ 10.

19

Exhibit A, Holcomb Affidavit, Exhibit 4, Defendant Mohave County’s Statement
of Facts in Support of its Motion for Summary Judgment, Docket No. 54.
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Latoski avers that he met with the other two employees, Lori Brown and Debbie
Keller, on August 9, 2013.20 Brown, who was an office assistant, avers that plaintiff “once
put his arms around my shoulders” and that “[p]laintiff would also occasionally wink at
me.”21 Keller, who was the computer coordinator, avers that plaintiff “put his hands on my
shoulders two times” during “a training session on computer programs.”22
Latoski avers that he believed Holcomb’s, Keller’s, and Brown’s complaints because
“[e]ach woman who submitted a complaint was from a different division of Mohave
County and supervised by a different manager” and because “each woman had been a
well-respected employee of Mohave County for many years.”23

Latoski avers that

Holcomb was so upset that she was “brought to tears” while “relaying her experiences
with [p]laintiff.”24
Plaintiff testified, however, that he was told by Greg Arnold, another County
employee, that there was an “old guard of certain women within the county [who] had a
20

Latoski Affidavit at 3-4, ¶¶ 17-18, Defendant Mohave County’s Statement of Facts
in Support of its Motion for Summary Judgment, Docket No. 54.
21

Affidavit of Lori Brown at 1-2, ¶¶ 2 & 6, Exhibit 5, Defendant Mohave County’s
Statement of Facts in Support of its Motion for Summary Judgment, Docket No. 54.
22

Affidavit of Debbie Keller at 1-2, ¶ 2 & 6, Exhibit 6, Defendant Mohave County’s
Statement of Facts in Support of its Motion for Summary Judgment, Docket No. 54.
23

Latoski Affidavit at 4, ¶ 20, Exhibit 1, Defendant Mohave County’s Statement of
Facts in Support of its Motion for Summary Judgment, Docket No. 54.
24

Id.
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... collaboration, and they would use that collaboration to intimidate men and get their
way.”25 Plaintiff testified that he believed that the three women “collaborated” to come up
with their stories about him.26 Plaintiff also testified that Arnold told him that Holcomb
also had complained about Arnold violating her personal space.27
Latoski terminated plaintiff on August 9, 2013. Latoski avers that he “was the
ultimate decision-maker concerning [p]laintiff’s termination”, although he advised Ray
Osuna that he was going to terminate plaintiff.28 Latoski avers that he terminated
“[p]laintiff’s employment ... based both on [p]laintiff’s unpermitted use of his Countyissued vehicle and the complaints received by Ms. Holcomb, Ms. Brown, and Ms. Keller.”29
Latoski avers that based on these two issues, he “found that [p]laintiff did not successfully
complete his probationary period.”30
Plaintiff testified that the termination letter he was given stated that he “didn’t
perform my work properly” but that Latoski told him he was being terminated because of

25

Nixon Deposition at 40:9-13, Exhibit 2, Defendant Mohave County’s Statement of
Facts in Support of its Motion for Summary Judgment, Docket No. 54.
26

Id. at 40:18-22.

27

Id. at 37:20-24.

28

Latoski Affidavit at 4, ¶¶ 21-22, Exhibit 1, Defendant Mohave County’s Statement
of Facts in Support of its Motion for Summary Judgment, Docket No. 54.
29

Id. at ¶ 19.

30

Id.
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the reports that he had “grabbed women inappropriately.”31 Plaintiff testified that the issue
with his County vehicle “was never brought up, it was never mentioned, and they didn’t
run the report until about 4:00 that afternoon.”32 Plaintiff testified that his use of the
County vehicle was first brought up during a second-level appeal “with the State of
Nevada for my unemployment benefits.”33 Plaintiff also testified that about two weeks
prior to his termination, Arnold told him that he was going to be perceived as a threat by
other employees, including Latoski, “[b]ecause I was so efficient at doing my job.”34
Greg Arnold was hired to replace plaintiff as engineering manager.35
On September 12, 2013, plaintiff filed a charge of discrimination with the EEOC,
alleging that he had been terminated because of his gender.36 The EEOC issued a right to
sue letter on December 13, 2013.37

31

Nixon Deposition at 42:22-43:7, Exhibit 2, Defendant Mohave County’s Statement
of Facts in Support of its Motion for Summary Judgment, Docket No. 54.
32

Id. at 43:25-44:2.

33

Id. at 44:11-15.

34

Id. at 46:4-16.

35

Latoski Affidavit at 4, ¶ 23, Exhibit 1, Defendant Mohave County’s Statement of
Facts in Support of its Motion for Summary Judgment, Docket No. 54.
36

Complaint at 2, ¶ 6, Docket No. 1.

37

Id.
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Defendant now moves for summary judgment on plaintiff’s Title VII claim, the only
claim remaining in this case.
Discussion
Summary judgment is appropriate when there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The
initial burden is on the moving party to show that there is an absence of genuine issues of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets
its initial burden, then the non-moving party must set forth specific facts showing that there
is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In
deciding a motion for summary judgment, the court views the evidence of the non-movant
in the light most favorable to that party, and all justifiable inferences are also to be drawn
in its favor. Id. at 255. “[T]he court’s ultimate inquiry is to determine whether the ‘specific
facts’ set forth by the nonmoving party, coupled with undisputed background or
contextual facts, are such that a rational or reasonable jury might return a verdict in its
favor based on that evidence.” T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass’n,
809 F.2d 626, 631 (9th Cir. 1987).
“Title VII prohibits employers from discriminating against ‘any individual with
respect to ... compensation, terms, conditions, or privileges of employment, because of such
individual’s ... sex.’” Jespersen v. Harrah’s Operating Co., 392 F.3d 1076, 1079 (9th Cir.

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2004) (quoting 42 U.S.C. § 2000e-2(a)(1)). “In order to prevail on a Title VII disparate
treatment sex discrimination claim, an employee need only establish that, but for his or her
sex, he or she would have been treated differently.” Id.
In responding to a summary judgment motion in a Title VII
disparate treatment case, a plaintiff may produce direct or
circumstantial evidence demonstrating that a discriminatory
reason more likely than not motivated the defendant’s decision, or alternatively may establish a prima facie case under the
burden-shifting framework set forth in McDonnell Douglas
Corp. v. Green[.]
Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005).
The only evidence that could possibly be considered direct evidence of discrimination is plaintiff’s testimony that Greg Arnold told him that the three women were in some
kind of conspiracy to intimidate male employees. But plaintiff’s testimony is insufficient
to create a triable issue of fact. Plaintiff has offered nothing to corroborate his testimony.
He has offered no declaration or affidavit from Greg Arnold. While “[s]pecific testimony
by a single declarant can create a triable issue of fact, ... the ... court ... need not find a
genuine issue of fact if, in its determination, the particular declaration was ‘uncorroborated
and self-serving.’” F.T.C. v. Neovi, Inc., 604 F.3d 1150, 1159 (9th Cir. 2010) (quoting
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002)). The problem here
is not, as defendant suggests, that Arnold’s statements are hearsay because that problem
could be remedied at trial if Arnold were to testify. See S. Calif. Darts Ass’n v. Zaffina, 762

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F.3d 921, 925-26 (9th Cir. 2014) (quoting Fraser v. Goodale, 342 F.3d 1032, 1036–37 (9th Cir.
2003)) (“Evidence may be offered ‘to support or dispute a fact’ on summary judgment only
if it ‘could be presented in an admissible form at trial.’”). The problem here is the only
evidence in the record that Arnold made these statements is plaintiff’s self-serving
argument, which is not sufficient to create a triable issue of fact.
There is also no circumstantial evidence here that suggests that plaintiff was
terminated because he was male. Plaintiff speculates that the complaints of the three
women “would never have seen the light of day” if he “were a woman[.]”38 But,
speculation cannot create a genuine issue of material fact. Karam v. City of Burbank, 352
F.3d 1188, 1194 (9th Cir. 2003).
Because there is no direct or circumstantial evidence of gender discrimination, the
court analyzes plaintiff’s disparate treatment claim under the McDonnell Douglas
framework. “Under this analysis, plaintiff[] must first establish a prima facie case of
employment discrimination.” Hawn v. Exec. Jet Management, Inc., 615 F.3d 1151, 1155 (9th
Cir. 2010). “If plaintiff[] establish[es] a prima facie case, ‘[t]he burden of production, but
not persuasion, then shifts to the employer to articulate some legitimate, nondiscriminatory
reason for the challenged action.’” Id. (quoting Chuang v. Univ. of Cal. Davis, Bd. of Trs.,
225 F.3d 1115, 1123–24 (9th Cir. 2000)). “If defendant meets this burden, plaintiff[] must
38

Nixon Deposition at 45:7-11, Exhibit 2, Defendant Mohave County’s Statement of
Facts in Support of its Motion for Summary Judgment, Docket No. 54.
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then raise a triable issue of material fact as to whether the defendant’s proffered reasons
for [his termination are] mere pretext for unlawful discrimination.” Id.
“To establish a prima facie case under McDonnell Douglas, a plaintiff must
demonstrate that: (1) he belonged to a protected class; (2) he was qualified for his job; (3)
he was subjected to an adverse employment action; and (4) similarly situated employees
not in his protected class received more favorable treatment.” Anthoine v. N. Central
Counties Consortium, 605 F.3d 740, 753 (9th Cir. 2010). It is undisputed that plaintiff was
a member of a protected class, that he was qualified for his job, and that he was subjected
to an adverse employment action.
As for the fourth element, plaintiff has presented no evidence that similarly situated
female employees received more favorable treatment. At his deposition, plaintiff appeared
to suggest that Holcomb was given more favorable treatment because she was not
terminated for harassing McKenna.39 But, Holcomb was not similarly situated to plaintiff.
“‘[I]ndividuals are similarly situated when they have similar jobs and display similar
conduct.’” Hawn, 615 F.3d at 1157 (quoting Vasquez v. County of Los Angeles, 349 F.3d
634, 641 (9th Cir. 2003)). “Employees in supervisory positions are generally deemed not
to be similarly situated to lower level employees.” Vasquez, 349 F.3d at 641. Plaintiff was
Holcomb’s supervisor and there is no evidence that they had the same job duties. Plaintiff
39

Nixon Deposition at 47:6-13, Exhibit 2, Defendant Mohave County’s Statement of
Facts in Support of its Motion for Summary Judgment, Docket No. 54.
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could also have made out the fourth element of his prima facie case by showing that his
position was filled by a female. Villiarimo, 281 F.3d at 1062. However, it is undisputed
that plaintiff’s position was filled by another male. Thus, plaintiff cannot satisfy the fourth
element of a prima facie case.
But even if plaintiff had made out his prima facie case, which he has not, defendant
has articulated legitimate, nondiscriminatory reasons for terminating plaintiff. Defendant
claims that it terminated plaintiff because he violated defendant’s rules regarding the use
of County vehicles and because three fellow employees made complaints against him.
These are legitimate reasons for terminating an employee.
The burden would then shift to plaintiff to show that these reasons were pretext.
“To show pretext, the plaintiff can produce direct evidence showing that ‘the discrimination more likely motivated the employer’ or indirect evidence showing that ‘the employer’s
explanation is unworthy of credence.’” White v. AKDHC, LLC, 664 F. Supp. 2d 1054, 1069
(D. Ariz. 2009) (quoting Vasquez, 349 F.3d at 641). “Direct evidence consists of clearly
racist or discriminatory statements or actions by the employer, and very little direct
evidence is required to raise a genuine issue of material fact.” Id. (citing Coghlan v. Am.
Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005)).
The only possible direct evidence is plaintiff’s testimony that Greg Arnold told him
that the three women were in some kind of conspiracy to intimidate male employees. But,

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as discussed above, plaintiff’s self-serving, uncorroborated argument is insufficient to
create a triable issue of fact.
Plaintiff also not presented sufficient indirect evidence to create a triable issue of fact
as to pretext because this case involves the same actor inference. “‘[W]here the same actor
is responsible for both the hiring and the firing of a discrimination plaintiff, and both
actions occur within a short period of time, a strong inference arises that there was no
discriminatory motive.’” Id. (quoting Bradley v. Harcourt, Brace & Co., 104 F.3d 267,
270–71 (9th Cir. 1996)). It is undisputed that Latoski both hired and fired plaintiff within
the span of less than two months. “[P]laintiff must therefore make an ‘extraordinarily
strong showing of discrimination’ to rebut the presumption and avoid summary
judgment.” Id. (quoting Coghlan, 413 F3.d at 1097).
Plaintiff has made no such showing. Plaintiff seems to suggest that defendant gave
inconsistent reasons for his termination because the letter that he was given said he was
being terminated for not doing his job but he was told that he was being terminated based
on the complaints of the three women. But, plaintiff has not produced the letter and his
uncorroborated, self-serving argument about what the letter said is not sufficient to create
triable issue of fact. Plaintiff also contends that the vehicle issue was not raised until later,
but even if that were true, that is not an inconsistent reason. Plaintiff could have been
terminated both because of the complaints from his co-workers and because he had failed

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to comply with County’s vehicle policy. Giving an additional reason for an employee’s
termination is not the same thing as changing the reason. Defendant has consistently
maintained that plaintiff was terminated because of the complaints from his co-workers.
Conclusion
Defendant’s motion for summary judgment40 is granted. The clerk of court shall
enter judgment dismissing plaintiff’s complaint with prejudice.
DATED at Anchorage, Alaska, this 21st day of April, 2015.
/s/ H. Russel Holland
United States District Judge

40

Docket No. 53.
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