Gonzalez v. Nevada Department of Corrections

Filing 30

ORDER Granting in part and denying in part 23 Defendant's Motion for Summary Judgment. Signed by Judge Richard F. Boulware, II on 8/6/15. (Copies have been distributed pursuant to the NEF - PS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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Brenda Gonzalez,

Case No. 2:12-cv-02143-RFB-CWH

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Plaintiff,

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ORDER GRANTING IN PART AND
MOTION FOR SUMMARY JUDGMENT

v.
Nevada Department of Corrections,

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Defendant.

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Plaintiff Brenda Gonzalez began working for the Nevada Department of Corrections

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. ¶ 10, ECF No. 1. On November 10, 2010,

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discrimination and harassing statements during her employment. Id. She further claims that she

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received disparate treatment and was ultimately terminated because she was a female in a male-

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dominated workplace. Compl. ¶¶ 19, 33.

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Judgment

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in part and denied in part.

, ECF No. 23. For the reasons discussed below, this Motion is granted

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I.

BACKGROUND
A. Procedural

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On September 27, 2012, Gonzalez received a Right to Sue Notice from the Equal

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Employment Opportunity Commission. ECF No. 1-3. On December 17, Gonzalez filed a

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Complaint in this Court. ECF No. 1. In her Complaint, Gonzalez alleged six causes of action

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(numbered 1 7, skipping 6): Gender Discrimination, Public Policy Tort, Respondeat Superior,

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Negligent Hiring, Supervision, and/or Training of Employees, Gender Origin Discrimination

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pursuant to NRS 613.330, et. al., and Intentional Infliction of Emotional Distress.1
On January 10, 2013, NDOC filed a Motion to Dismiss. ECF No. 6. The Motion to
Dismiss was denied on February 19, 2013. ECF No. 10.
On May 28, 2014, NDOC filed the instant Motion. Mot. for Summ. J., ECF No. 23. On

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April 24, 2015, the Court heard oral argument on the Motion

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. ECF No. 29. This

Order follows.
B. Undisputed Facts

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Associate Warden Renee Baker and Caseworker Specialist III Claude Willis interviewed

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Gonzalez for the position of caseworker specialist trainee. Decl. of Renee Baker ¶ 3, ECF No.

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23-1. Gonzalez a member of a protected class (gender) and was qualified for this position.

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Reply 2:19

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Gonzalez Dep. 69:20 25. Gonzalez was hired by NDOC as a caseworker specialist trainee on

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October 18, 2010. Gonzalez Dep. 9:25 10:7, ECF No. 24-1. Claude Willis wa

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supervisor. Gonzalez Dep. 20:6 18.

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On October 21, 2010, Willis warned Gonzalez regarding wearing a blue blouse. Charge

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of Discrimination, ECF 1-2; Gonzalez Dep. 21:4 23:23; see Decl. of Claude Willis, ECF No. 23-

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7. This verbal warning was retracted and Gonzalez suffered no consequences as a result of the

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verbal warning. Gonzalez Dep. 27:10 28:8, 44:13 45:6, ECF No. 23-2; Decl. of Renee Baker ¶

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7, ECF No. 23-1; Decl. of Claude Willis, ECF No. 23-7. This retraction of the verbal warning

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took place the day after the warning, prior to the filing of any complaint, when Gonzalez notified

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Associate Warden Renee Baker of the matter. Gonzalez Dep. 20:14 15, ECF No. 23-2; Decl. of

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Claude Willis, ECF No. 23-7.

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informed Gonzalez that she was allowed to wear blue. Gonzalez Dep. 27:5 28:8.

At that time, October 22, 2010, Associate Warden Baker

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On or about October 25, 2010, Gonzalez was placed on administrative duty. Decl. of

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E.K. McDaniel ¶ 3, ECF No. 23-6. Gonzalez did not experience a reduction in pay or benefits as

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To maintain consistency with the Complaint, the Court will refer to the claim for

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caseworker duties while on administrative duty.

Gonzalez Dep. 42:7 43:12, 49:16 50:1.

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Gonzalez was prevented from being around the other correctional officers and was not permitted

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to go into the prison facility where the other caseworkers worked. Gonzalez Dep. 39:1 16,

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41:6 22; see Decl. of James Cox ¶ 5, ECF No. 23-5. While discussing her assignment to

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administrative duty, Sergeant Wagner

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tape. Gonzalez Dep. 67:16 68:13; 76:9 23. He then informed her that her heels should be
under one inch. Gonzalez Dep. 77:7 21.

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Gonzalez was rejected from probation (employment terminated) on November 10, 2010.

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Decl. of E.K. McDaniel ¶ 7, ECF No. 23-6. Gonzalez was placed on administrative duty and

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ultimately terminated without NDOC confirming or asking whether Gonzalez was aware that a

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person with whom she was associating was a federal parolee and also without considering any

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ormance. Aff. of Brenda Gonzalez ¶ 10; Decl. of James Cox

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¶¶ 7 11.

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II.

LEGAL STANDARD

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Summary judgment is appropriate when the pleadings, depositions, answers to

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is no

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genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

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Fed. R. Civ. P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When

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considering the propriety of summary judgment, the court views all facts and draws all

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inferences in the light most favorable to the nonmoving party. Johnson v. Poway Unified Sch.

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Dist., 658 F.3d 954, 960 (9th Cir. 2011). Where the party seeking summary judgment does not

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have the ultimate burden of persuasion at t
Nissan Fire & Marine

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Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).

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] burden of production, the moving party must either produce

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the nonmoving party does not have enough evidence of an essential element to carry its ultimate

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burde

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no obligation to produce anything, even if the nonmoving party would have the ultimate burden

Id.

Id. at 1102-03.

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Id. at 1103. The

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the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to

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Scott v. Harris, 550 U.S. 372,

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380 (2007) (alteration in original) (internal quotation marks omitted). However, the ultimate

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burden of persuasion on a motion for summary judgment rests with the moving party, who must

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convince the court that no genuine issue of material fact exists. Nissan Fire, 210 F.3d at 1102.
A plaintiff alleging employment discr

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need produce very little evidence in

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order to overcome an employer's motion for summary judgment. This is because the ultimate

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question is one that can only be resolved through a searching inquiry--one that is most

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appropriately conducted by a f

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F.3d 1115, 1124 (internal quotation marks omitted).

Chuang v. Univ. of Cal. Davis, 225
In the context of employment

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the importance of zealously guarding an

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employee's right to a full trial, since discrimination claims are frequently difficult to prove

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without a full airing of the evidence and an opportunity to evaluate the credibility of the
McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir. 2004).

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III.

DISCUSSION
A. Evidence Admissibility

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The party seeking the admission of documents on motion for summary judgment bears

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the burden of proof to show their admissibility. Hooper v. Lockheed Martin Corp., 688 F.3d

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1037, 1051 (9th Cir. 2012). Litigants submitting summary judgment motions, oppositions, or

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replies must ensure that any evidence submitted with such briefs is properly authenticated and

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not merely appended to or submitted with the brief. Orr v. Bank of Am., NT & SA, 285 F.3d

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764, 773 (9th Cir. 2002

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Beyene v. Coleman Sec. Servs., Inc., 854 F.2d

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ed

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Here, Exhibit J, attached to

eply, purports to be the deposition of Renee Baker.

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ECF No. 26-1.

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certification nor any other form of authentication. Thus, Exhibit J, ECF No. 26-1, is presently

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inadmissible and will not be considered.
B. State Law Claims and Punitive Damages

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However, this purported deposition is supported by neither a

In her Complaint, Gonzales makes several claims for monetary damages based in state

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law. In the Motion, NDOC argues that, because NDOC is a state agency,

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claims for negligent hiring and supervision, intentional infliction of emotional distress, and

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discrimination pursuant to N.R.S § 613.310 et seq. are barred by the Eleventh Amendment. Mot.

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for Summ. J. 23 24; see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). These state

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law claims underlie Gonza

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45 50, 56 72.

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Compl. ¶¶

In her Response, Gonzalez did not address or

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barred from pursuing the state claims.

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she wished to withdraw to withdraw with prejudice the second, fourth, fifth, and seventh causes

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of action.

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prejudice.

firmed that Gonzalez did withdraw the state claims with

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Similarly, NDOC argues that, because NDOC is a state agency, punitive damages are not

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available under Title VII. Mot. for Summ. J. 25; see also 42 U.S.C. § 1981a(b)(1). Again,

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Gonzalez was conceding the matter.

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Accordingly, the Court holds that the Gonzalez has withdrawn her second, fourth, fifth,

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and seventh causes of action and her claims for punitive damages. Consequently, the Court does

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not address summary judgment of these matters.
C. Gender Discrimination Claim

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disparate treatment and of hostile work environment under Title VII of the Civil Rights Act of

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1964. For the reasons discussed below, summary judgment for NDOC on this cause of action is

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granted in part and denied in part.
1. Disparate Treatment

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There are two approaches applicable to the analysis of disparate treatment; when

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McDonnell

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Douglas framework, or alternatively, may simply produce direct or circumstantial evidence

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McGinest, 360 F.3d at 1122. Here, Gonzalez has exclusively argued within McDonnel Douglas

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framework. Resp. 11 13, ECF No. 24. To establish a prima facie case under McDonnell

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Douglas, a plaintiff must show that (1) he belonged to a protected class; (2) he was qualified for

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his job; (3) he was subjected to an adverse employment action; and (4) similarly situated

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employees not in his protected class received more favorable treatment.

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Counties Consortium, 605 F.3d 740, 753 (9th Cir. 2010).

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one that materially affect[s] the compensation, terms, conditions, or privileges of ...

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Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (alterations in

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Anthoine v. N. Cent.

original) (internal quotation marks omitted).

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If the plaintiff demonstrates a prima facie case, the burden shifts to the defendant

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employer to provide a non-discriminatory reason for the action. Id. If the defendant makes such

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a showing, the burden shifts back to the plaintiff to prove discrimination by showing that the

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employer's proffered reason is pretextual. Id.

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...

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...

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This

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discriminatory reason more likely motivated the employer, or that the employer's proffered

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explanation is unworthy of credence because it is internally inconsistent or otherwise not

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Id. (internal quotation marks omitted).

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Here, in the Motion, NDOC identifies six possible alleged incidents of adverse

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employment action. Mot. for Summ. J. 10:7 13, ECF No. 23. In her Response, Gonzalez argues

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only that the issuance of a verbal warning for the wearing of a blue shirt and her placement on

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administrative duty were adverse employment actions. Response 13:9 24, ECF No 24. There is

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no dispute that Gonzalez is a member of a protected class and that she was qualified for her

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position. Reply 2:19 21, ECF No. 26.
a. Employment Termination

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First, although neither the NDOC nor Gonzalez specifically address the question, the
Court finds that the

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However, with regards to termination, Plaintiff has simply presented no evidence

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whatsoever regarding the termination or non-termination of any other NDOC employees

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similarly situated or reasonably similarly situated. Absent any such evidence, the Court may

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only hypothesize about how a similarly situated male individual might have been treated, and at

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the motion for summary judgment stage, such unsubstantiated conjecture is inadequate.

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b. The Verbal Warning for Wearing a Blue Shirt

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The issuance of the verbal warning for wearing a blue shirt does not constitute an adverse

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employment action. The undisputed facts demonstrate that the verbal warning was retracted and

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that Gonzalez suffered no consequences as a result of the verbal warning. Gonzalez Dep. 27:10

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28:8, 44:13 45:6, ECF No. 23-2; Decl. of Renee Baker ¶ 7, ECF No. 23-1; Decl. of Claude

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Willis, ECF No. 23-7.

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Rather than dispute the retraction, Gonzalez argues that the retraction is ineffective

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Resp. 13:10 14, quoting Chuang v. Univ. of California Davis, Bd. of Trustees, 225 F.3d 1115,

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1130 (9th Cir. 2000). Chuang, however, is inapposite, as the curative measures at issue there

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were specifically and importantly post-complaint. Id. (citing Lam v. Univ. of Hawai'i, 40 F.3d

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employer to take corrective action in an attempt to shield itself from liability, it is clear that

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nondiscriminatory employer actions occurring subsequent to the filing of a discrimination

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complaint

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(emphasis added))). Here, in contrast, the retraction of the verbal warning took place the next

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day, prior to the filing of any complaint, when Gonzalez notified Associate Warden Renee Baker

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of the matter. Gonzalez Dep. 26:12 24, ECF No. 23-2. Therefore, because Gonzalez suffered

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no consequences as a result of the verbal warning, the issuance of the verbal warning is not an

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adverse employment action for the purposes of demonstrating disparate treatment.
c. Placement on Administrative Duty

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A reasonable jury may find that the restriction to administrative duty was an adverse

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employment action. There is no dispute that Gonzalez did not experience a reduction in pay or

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benefits as a result of being placed on administrative duty. Gonzalez Dep. 42:7 43:12, 49:16

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50:1. However, it is equally undisputed that Gonzalez was prevented from being around the

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other correctional officers and was not permitted to go into the prison facility where the other

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caseworkers worked. Gonzalez Dep. 39:1 16, 41:6 22; see Decl. of James Cox ¶ 5, ECF No.

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The Court finds that these restrictions materially affected the terms, conditions, or
or, at a minimum, create a genuine issue of fact for a jury

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to decide.
The Court also finds

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placement on administrative duty.

NDOC presents facts indicating Gonzalez was put on

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administrative duty because of her association with a federal parolee and gang member. Decl. of

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James Cox ¶ 5, ECF No. 23-5. In contrast, Gonzalez presents facts indicating she was told by

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Sergeant Wagner, one of the training officers, that she

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Gonzalez Dep. 39:1 4, 39:19 40:1; 67:11 68:7; 76:15 77:8. The Court, however, need not

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resolve this dispute between the parties. The Court simply finds at this time that Gonzalez has

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disparate treatment theory as to her placement on administrative duty.

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2. Hostile Work Environment

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In order to establish a hostile work environment claim under Title VII, an employee

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demonstrate that

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conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the

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conditions of her employment and create an abusive work environment.

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Porter v. California

Dep't of Corr., 419 F.3d 885, 892 (9th Cir. 2005). In determining whether conduct is sufficiently

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including the frequency of the discriminatory conduct; its severity; whether it is physically

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threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes

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, 536 U.S. 101,

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116 (2002).

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coworkers:

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Under Title VII, an employer's liability for such harassment may depend
on the status of the harasser. If the harassing employee is the victim's coworker, the employer is liable only if it was negligent in controlling
working conditions. In cases in which the h
however, different rules apply. If the supervisor's harassment culminates
in a tangible employment action, the employer is strictly liable. But if no
tangible employment action is taken, the employer may escape liability by
establishing, as an affirmative defense, that (1) the employer exercised
reasonable care to prevent and correct any harassing behavior and (2) that
the plaintiff unreasonably failed to take advantage of the preventive or
corrective opportunities that the employer provided.
Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013).

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Here, viewing all facts and drawing all inferences in the light most favorable to the

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nonmoving party, as the Court must, Johnson, 658 F.3d at 960, Gonzalez has demonstrated

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sufficient facts to support a claim for gender discrimination on the basis of a hostile work

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environment. This finding is supported by several facts. First, there is the timing of when

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Gonzalez was placed on administrative duty.

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She was placed on administrative duty by

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Associate Warden Baker the next business day after she had complained to Baker about being

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harassed by her supervisor, Willis, who had sought to enforce a separate dress code for women.

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Gonzalez Dep. 54 60. Willis had previously told her in her hiring interview that she was an

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attractive woman and he was not sure how well this would work out for her in the work setting.

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Gonzalez Dep. 69:20 25. Baker also told Gonzalez on the same day she complained about

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Willis that Gonzalez should simply ignore what others were saying about her. Gonzalez Dep.

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56 59. This advice suggests that Baker was aware of potentially harassing statements being

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made to Gonzalez.

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Second, and perhaps most egregiously, Gonzalez, upon being placed on administrative

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duty, was placed under the direction of a supervisor, Sergeant Wagner, who engaged in

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toward her and who directed verbally offensive comments to
Specifically, as previously noted, Wagner told her that she was placed on administrative

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her.

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duty because management at the facility essentially

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Gonzalez Dep. 38 40, 67 68

expressing
he work environment set the stage for a

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hostile work environment.
Most importantly, after telling her that she essentially did not belong amongst her male

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coworkers or inmates, Wagner

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inappropriate conduct. After expressing his disdain for her presence in the work environment, he

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measured her heels. Gonzalez Dep. 40, 66 68, 72, 76 78. The Court can reasonably infer that

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Wagner was inappropriately close to Gonzalez physically when measuring her heels. The Court

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further notes that the position that he would reasonably have been in to measure her heels

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behind her, bent down on the ground, with his face close to her backside or front groin area

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(intimate parts of her body)

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Gonzalez. Such a physically inappropriate and intimidating act by her supervisor at the time in

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his office is potentially sufficient unto itself to establish a hostile work environment.

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in his office

engaged in offensive and physically

would have been physically intimidating and humiliating for

Considered independently, each of

allegations may not appear sufficient to

survive summary judgment. However, when viewing these events as a whole, a reasonable jury

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could find that Gonzales was subject to unwelcome conduct of a sexual nature sufficient to

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create an abusive work environment which NDOC failed to appropriately manage and which

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resulted in tangible employment actions. Consequently, summary judgment on the question of

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hostile work environment is inappropriate.
D. Respondeat Superior

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NDOC asks the Court to grant summary

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respondeat superior,

d facts showing a

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hostile work environment and, even if there were, NDOC responded adequately. Mot. for

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Summ. J. 24:21 26.

As discussed above, supra section III.C.2, the Court does not adopt

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summary judgment on this basis.

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appropriate on other grounds, discussed below.
Respondeat superior is better understood as a theory of liability than as an independent

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However, the Court finds that summary judgment is

cause of action. See Restatement

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Courts in this district routinely dismiss respondeat superior and vicarious liability causes of

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action for this reason. See, e.g., Garcia v. Nevada Prop. 1, LLC, 2015 WL 67019, at *3, 2015

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U.S. Dist. LEXIS 1606, at *7

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Okeke v. Biomat USA, Inc., 927 F. Supp. 2d 1021, 1028 (D.

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icarious liability . . . is a theory of liability, not an independent cause of

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action

Fernandez v. Penske Truck Leasing Co., L.P., 2012 WL 1832571, at *1 n.1, 2012 U.S.

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Dist. LEXIS 69596, at *4 n.1 (D. Nev. May 18,

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liability holding an employer vicariously liable for the torts of its employee, it is not an

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. However, Nevada does appear to recognize respondeat superior

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as a cause of action for torts committed by employees. See Rockwell v. Sun Harbor Budget

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Suites, 925 P.2d 1175, 1179 (1996)

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Regardless of whether respondeat superior may be an independent cause of action,

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however, that cause of action cannot proceed in this action for two additional reasons.

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Respondeat superior extends to employers, under certain circumstances, liability for employee-

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committed torts. See Nev. Rev. Stat. § 41.130; Nev. Rev. Stat. § 41.745; Rockwell, 925 P.2d at

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1179 81. First,

his matter is simply a wrongful termination case . . .

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7, ECF No. 24. Fittingly, there are no allegations or facts demonstrating tortuous

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conduct by employees which could in turn give rise to tortious liability on the part of the NDOC.

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Second, to the extent NDOC might be liable for state-law torts, Gonzalez has already conceded

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such claims would be barred by Eleventh Amendment immunity. See supra section III.B. Thus,

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an independent cause of action for respondeat superior cannot survive.

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Importantly, respondeat superior as a theory of liability is available under Title VII in the

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Burlington Indus., Inc. v. Ellerth, 524

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an actionable hostile environment created by a supervisor with immediate (or successively

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higher) authority over the

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environment language from Ellison v. Brady, 924 F.2d 872, 881 (9th Cir. 1991), Gonzalez

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appears to indicate her intention to pursue respondeat superior within the Title VII context.

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Response 17:16

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offensive work environment of which management-level employees knew, or in the exercise of

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This section of Ellison was in turn quoting from

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E.E.O.C. v. Hacienda Hotel, 881 F.2d 1504, 1515 (9th Cir. 1989), in which the Ninth Circuit was

Id. at 765. In fact, through her quotation of hostile work

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by its supervisory personnel or by co-workers of the
Accordingly,

third cause of action for respondeat

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superior is granted because respondeat superior is not an independent cause of action that may

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be pursued against NDOC in this action. This does not preclude Gonzalez from arguing that the

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theory of respondeat superior applies within the context of her Title VII Gender Discrimination

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cause of action.

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IV.

CONCLUSION
For the reasons discussed above, Motion for Summary Judgment, ECF No. 23, is

GRANTED in part and DENIED in part.

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punitive damages are voluntarily withdrawn with prejudice.

Accordingly,

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summary judgment of these matters is DENIED as moot.

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Summ

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part and DENIED in part

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treatment for being placed on administrative leave and on hostile work

based on disparate

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environment

theories of liability for disparate treatment

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based on termination or any other adverse actions may not proceed.

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Dated: August 6, 2015.

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RICHARD F. BOULWARE, II
UNITED STATES DISTRICT COURT

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