Carlson et al v. Victoria Partners

Filing 94

ORDER granting in part and denying in part 70 Motion for Summary Judgment. Signed by Judge James C. Mahan on 9/26/2014. (Copies have been distributed pursuant to the NEF - DKJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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CLAUDIA CARLSON,

Case No. 2:13-CV-378 JCM (PAL)

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Plaintiff(s),

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ORDER

v.
VICTORIA PARTNERS,

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Defendant(s).

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Presently before the court is defendant Victoria Partners d/b/a Monte Carlo Resort and

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Casino’s (hereinafter “defendant”) motion for summary judgment. (Doc. # 70).

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Claudia Carlson and Joshua Hall (hereinafter “plaintiffs”) filed a response, (doc. # 80), to which

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defendant replied, (doc. # 88).

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I.

Plaintiffs

Background

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Plaintiffs were previously employed as ushers in the Monte Carlo showroom. (Doc. #

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70). Plaintiff Claudia Carlson (“Carlson”) is a Hispanic female who began working at the Monte

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Carlo in 2003. (Doc. # 80). Plaintiff Joshua Hall (“Hall”) is an African-American male who

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began working at the Monte Carlo in 2005. (Doc. # 80).

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Plaintiffs allege that, beginning in 2008, they were subjected to and witnessed coworkers’

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racist conduct and remarks. (Doc. # 6). Plaintiffs also allege that beginning around 2010 or

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2011, coworkers made sexually offensive statements in plaintiffs’ presence and directed such

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statements towards plaintiffs. (Doc. # 6).

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Plaintiffs filed a number of written complaints with defendant concerning this purported

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discriminatory conduct.

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disciplinary write-ups for allegedly failing to follow appropriate procedures and stay within her

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workstation. (Doc. # 6).

James C. Mahan
U.S. District Judge

(Doc. # 6).

Beginning in 2011, Carlson received a number of

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As a result of the disciplinary write-ups, Carlson was suspended pending investigation.

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On or about November 7, 2011, she was permanently fired. (Doc. # 6). On or about October 31,

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2011, Hall went on medical leave for severe emotional distress supposedly caused by

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defendant’s alleged discrimination. (Doc. # 6). Hall never returned to work at the Monte Carlo

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and eventually resigned. (Doc. # 6).

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Plaintiffs both filed charges of discrimination with the United States Equal Employment

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Opportunity Commission (“EEOC”). (Doc. # 6). On February 1, 2013, plaintiffs received notice

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of their rights to sue under Title VII of the Civil Rights Act of 1964 (“Title VII”). (Doc. # 27-1,

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27-2).

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On March 7, 2013, plaintiffs filed a complaint asserting the following causes of action: 1)

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hostile work environment for race in violation of 42 U.S.C. § 1981; 2) hostile work environment

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for gender in violation of Title VII, on behalf of Carlson; 3) sexual harassment in violation of

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Title VII, on behalf of Hall; 4) retaliation in violation of § 1981; 5) retaliation in violation of

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Title VII; and 6) constructive discharge in violation of § 1981, on behalf of Hall.1 (Doc. # 6).

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On August 25, 2014, plaintiffs filed a motion for leave to file a declaration in further

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support of their response to defendant’s motion for summary judgment. (Doc. # 90). Plaintiffs

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sought to authenticate deposition transcripts and other documents included as exhibits to their

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opposition to defendant’s motion for summary judgment. (Doc. # 80).

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On September 16, 2014, Magistrate Judge Peggy Leen granted in part and denied in part

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the motion for leave.

(Doc. # 93).

Judge Leen granted leave to include court reporter

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certifications to authenticate deposition excerpts. (Doc. # 93). However, Judge Leen denied

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James C. Mahan
U.S. District Judge

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The parties conflate and confuse plaintiffs’ claims, particularly by referring
interchangeably to plaintiffs’ sex and gender claims as claims of sexual harassment and § 1981
hostile work environment. Plaintiffs’ complaint also repeats plaintiff Carlson’s hostile work
environment claim under § 1981 in both count I and count IV. The court understands plaintiffs’
claims to include: (1) hostile work environment claims based on sex and sexual harassment
under Title VII; (2) hostile work environment claims based on race under Title VII and § 1981;
(3) claims for retaliation under Title VII and § 1981; and (4) plaintiff Hall’s claim for
constructive discharge under § 1981. For purposes of clarity, the court has arranged its
discussion of the claims into these four categories and will resolve the summary judgment
motion accordingly.
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plaintiffs’ request to authenticate their remaining exhibits with a blanket declaration of

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authenticity by plaintiffs’ counsel. (Doc. # 93).
Defendant denies all of plaintiffs’ allegations and asserts that plaintiffs have fabricated

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the instant claims for monetary gain.

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judgment. (Doc. # 70).

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II.

Accordingly, defendants now move for summary

Legal Standards

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A. Summary judgment

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The federal rules of civil procedure allow summary judgment when the pleadings,

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depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

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any, show that “there is no genuine dispute as to any material fact and the movant is entitled to a

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judgment as a matter of law.” Fed. R. Civ. P. 56(a). A principal purpose of summary judgment

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is “to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S.

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317, 323-24 (1986).

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For purposes of summary judgment, disputed factual issues should be construed in favor

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of the non-moving party. Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 888 (1990). However, to

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be entitled to a denial of summary judgment, the non-moving party must “set forth specific facts

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showing that there is a genuine issue for trial.” Id.

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In determining summary judgment, a court applies a burden-shifting analysis. “When the

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party moving for summary judgment would bear the burden of proof at trial, it must come

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forward with evidence which would entitle it to a directed verdict if the evidence went

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uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the

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absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. Brokerage

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Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted).

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By contrast, when the non-moving party bears the burden of proving the claim or

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defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate

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an essential element of the non-moving party’s case; or (2) by demonstrating that the non-

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moving party failed to make a showing sufficient to establish an element essential to that party’s

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case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at

James C. Mahan
U.S. District Judge

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323-24. If the moving party fails to meet its initial burden, summary judgment must be denied

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and the court need not consider the non-moving party’s evidence. See Adickes v. S.H. Kress &

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Co., 398 U.S. 144, 159-60 (1970).

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If the moving party satisfies its initial burden, the burden then shifts to the opposing party

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to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith

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Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the

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opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient

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that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’

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differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n,

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809 F.2d 626, 631 (9th Cir. 1987).

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“A trial court can only consider admissible evidence in ruling on a motion for summary

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judgment.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). “Authentication is

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a condition precedent to admissibility.” Id. (internal quotation marks omitted). Authentication

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requires that the proponent produce evidence that is sufficient to support a finding that the

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document is what the proponent claims it is.

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documents cannot be considered in a motion for summary judgment.” Orr, 285 F. 3d at 773.

Fed. R. Evid. 901(a).

“[U]nauthenticated

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B. Title VII hostile work environment

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Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for

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an employer . . . to discriminate against any individual with respect to his compensation, terms,

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conditions, or privileges of employment, because of such individual’s race, color, religion, sex,

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or national origin.” 42 U.S.C. § 2000e-2(a)(1).

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“To make a prima facie case of a hostile work environment based on sex or race under

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Title VII, a person must show that: (1) she was subjected to verbal or physical conduct of a

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sexual nature or because of race, (2) this conduct was unwelcome, and (3) the conduct was

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sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an

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abusive working environment.” Craig v. M&O Agencies, Inc., 496 F.3d 1047, 1055 (9th Cir.

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2007); Manatt v. Bank of Am., N.A., 339 F.3d 792, 798 (9th Cir. 2003) (internal quotation marks

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omitted).

James C. Mahan
U.S. District Judge

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“Additionally, the working environment must both subjectively and objectively be

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perceived as abusive.” Id. “Objective hostility is determined by examining the totality of the

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circumstances and whether a reasonable person with the same characteristics as the victim would

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perceive the workplace as hostile.” Id. Finally, “conduct must be extreme to amount to a change

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in the terms and conditions of employment.” Id.

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To establish a claim based on hostile work environment, a plaintiff must demonstrate that

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the “workplace is permeated with discriminatory intimidation, ridicule and insult that is

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sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an

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abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations

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and quotations omitted).

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“Conduct that is not severe or pervasive enough to create an objectively hostile or

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abusive work environment–an environment that a reasonable person would find hostile or

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abusive–is beyond Title VII’s purview.” Id. The “mere utterance of an . . . epithet which

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engenders offensive feelings in a [sic] employee does not sufficiently affect the conditions of

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employment to implicate Title VII.” Id. (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S.

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57, 67 (1986)).

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C. Section 1981 hostile work environment

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42 U.S.C. § 1981 guarantees “all persons” the same right as white citizens to make and

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enforce contracts. 42 U.S.C. § 1981(a). “A hostile work environment interferes with the

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‘enjoyment of all benefits . . . and conditions of the contractual relationship’ of employment and

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is therefore actionable under § 1981.” Manatt, 339 F.3d at 797 (quoting 42 U.S.C. § 1981(b)).

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“A plaintiff must meet the same standards in proving a § 1981 claim that he must meet in

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establishing a . . . claim under Title VII . . . .” EEOC v. Inland Marine Indus., 729 F.2d 1229,

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1233 n. 7 (9th Cir. 1984). Namely, the plaintiff “must raise a triable issue of fact as to whether

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(1) she was subjected to verbal or physical conduct because of her race, (2) the conduct was

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unwelcome, and (3) the conduct was sufficiently severe or pervasive to alter the conditions of

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[the plaintiff’s] employment and create an abusive work environment.” Manatt, 339 F.3d at 798

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(internal quotation marks omitted).

James C. Mahan
U.S. District Judge

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D. Retaliation

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Under Title VII, “it is unlawful to retaliate against an employee because she has taken

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action to enforce rights protected under Title VII.” Miller v. Fairchild, 797 F.2d 727, 730 (9th

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Cir. 1986). To establish a prima facie case for retaliation, a plaintiff must demonstrate: (1)

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protected activity; (2) an adverse employment action; and (3) a causal link between the protected

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activity and the adverse employment action. Cornwell v. Electra Cent. Credit Union, 439 F.3d

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1018, 1034-35 (9th Cir. 2006). Section 1981 also applies to retaliation claims based on race.

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Manatt, 339 F.3d at 800-01.

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“Temporal proximity between protected activity and an adverse employment action can

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by itself constitute sufficient circumstantial evidence of retaliation in some cases.” Bell v.

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Clackamas Cty., 341 F.3d 858, 865 (9th Cir. 2003). Further, “where . . . the person who

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exhibited discriminatory animus influenced or participated in the decision-making process, a

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reasonable factfinder could conclude that the animus affected the employment decision.”

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Dominguez-Curry v. Nev. Trans. Dep’t, 424 F.3d 1027, 1038-39 (9th Cir. 2005).

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“Once a plaintiff establishes a prima facie case, the burden of production shifts to the

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employer to articulate a legitimate, non-retaliatory explanation for the action.” Miller, 797 F.2d

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at 731.

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establishment of a prima facie case, then the burden shifts once again to the plaintiff to show that

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the defendant’s proffered explanation is merely a pretext for discrimination.” Id.

“If the employer successfully rebuts the inference of retaliation that arises from

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The Supreme Court has recently clarified the standard of proof with respect to causation,

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holding that “Title VII retaliation claims must be proved according to traditional principles of

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but-for causation . . . . This requires proof that the unlawful retaliation would not have occurred

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in the absence of the alleged wrongful action or actions of the employer.” Univ. of Tex. Sw.

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Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).

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In introducing this heightened causation standard, the court recognized that “claims of

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retaliation are being made with ever-increasing frequency.” Id. at 2531. It noted that “lessening

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the causation standard could also contribute to the filing of frivolous claims, which would siphon

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James C. Mahan
U.S. District Judge

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resources from efforts by employer, administrative agencies, and courts to combat workplace

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harassment.” Id.

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E. Constructive discharge

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In order to establish a claim for constructive discharge, a plaintiff must prove that his

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working conditions were “so intolerable that a reasonable person would have felt compelled to

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resign.” Penn. State Police v. Suders, 542 U.S. 129, 147 (2004). “[W]hether conditions were so

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intolerable and discriminatory as to justify a reasonable employee’s decision to resign is

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normally a factual question left to the trier of fact.” Thomas v. Douglas, 877 F.2d 1428, 1434

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(9th Cir. 1989) (citing Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir. 1987)).

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Evidence of a single isolated discriminatory instance will not preclude summary

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judgment on the issue of constructive discharge. Watson, 823 F.2d at 361. A plaintiff must

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show aggravating factors such as a continuous pattern of discriminatory treatment over a period

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of months or years. Id.

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III.

Discussion

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A. Hostile work environment based on sex and sexual harassment

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Hall claims that his supervisor, Quiroga, sexually harassed him and that this created a

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hostile work environment. (Doc. # 6). In particular, Hall claims that Quiroga asked Hall if a

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tube of lipstick was his, invited Hall to join Quiroga and his friends on a trip, mentioned a gay

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club, and performed a pole dance in front of Hall. (Doc. # 6).

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Hall alleges that Quiroga made sexually offensive remarks in his presence “three or four”

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times per week. (Doc. # 80). He also claims that Quiroga “frequently stood excessively

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physically close to Hall” and “cast amorous looks and facial expressions” towards him. (Doc. #

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6).

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However, Hall provides evidence, through his deposition testimony, of only four

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particular instances of alleged harassment. Such limited instances, even offensive in nature, do

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not rise to the level of “severe or pervasive” conduct. See, e.g., Westendorf v. West Coast

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Contractors of Nev., Inc., 712 F.3d 417, 422 (9th Cir. 2013) (granting summary judgment on a

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sexual harassment claim where supervisors made multiple comments related to “girly work,”

James C. Mahan
U.S. District Judge

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tampons, “Double Ds,” orgasms, and french maid costumes). As a result, the evidence is

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insufficient to preclude summary judgment on Hall’s sexual harassment claims.

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Carlson alleges that she was sexually harassed and discriminated against on the basis of

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her sex. (Doc. # 6). In particular, Carlson claims that her coworker, Hansill, made comments

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about women’s bodies, including references to breasts and implants, in her presence. (Doc. #

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80).

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Carlson also asserts that her coworkers Don and Guzman made comments regarding

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prostitutes in front of her. (Doc. # 6). She further alleges that Don asked Carlson if she was

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trying to join the “diva squad,” called her fake, and referenced his preferences with regard to

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women’s bodies. (Doc. # 6).

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Carlson’s evidence and allegations of sexual harassment are similarly insufficient to

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show severe and pervasive conduct. The conduct that Carlson references does not rise to the

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level of seriousness required to alter the conditions of employment. Mere offensive comments

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are insufficient; defendant is entitled to summary judgment on this claim. See Westendorf, 712

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F.3d at 422.

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Notably, defendant also argues that Carlson’s claims are time-barred. (Doc. # 70). The

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300-day statutory limitations period for filing an EEOC claim would bar Carlson’s claims for

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any alleged sexual harassment occurring before October 16, 2009. (Doc. # 70). While Carlson

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could not recall specific dates of the purported offenses at her deposition, plaintiffs contend that

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the conduct at issue occurred in 2010 and 2011. (Doc. # 6).

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The court finds some dispute of material fact over the timing of the conduct which, when

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viewed in the light most favorable to plaintiffs, would allow their claims to go forward. See

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Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1039 (9th Cir. 2005) (reversing

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summary judgment despite plaintiff’s failure to identify specific dates of alleged pervasive

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discriminatory conduct). However, because plaintiffs have failed to provide sufficient evidence

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to show severe and pervasive conduct, the court will grant summary judgment on the merits.

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James C. Mahan
U.S. District Judge

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Defendant also argues that Hall failed to exhaust his administrative remedies. (Doc. #

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70). Defendant contends that Hall’s amended EEOC charge never contained any allegation of

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sexual harassment, therefore he cannot bring such a claim in this suit. (Doc. # 70).

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Exhibit DDD to plaintiffs’ response to defendant’s motion for summary judgment is a

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letter detailing the purported sexual harassment. (Doc. # 80-56). Hall contends that he sent this

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letter to the EEOC when he filed his amended charge.

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First, this document has not been authenticated and thus cannot be considered by the

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court in ruling on a motion for summary judgment. See Orr, 285 F. 3d at 773. However, even if

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Hall could provide admissible evidence that he sent the letter to the EEOC, this would be

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insufficient to exhaust Hall’s administrative remedies on this claim.

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A plaintiff may litigate a claim for which administrative remedies are available only if

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that claim was included in an EEOC charge or related to allegations in the charge. Sosa v.

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Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990). While Hall’s sexual harassment and race claims

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both allege discrimination, they do so on wholly different bases and by evidence of separate

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alleged instances of conduct.

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As a result, the court cannot say that “the original EEOC investigation would have

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encompassed the additional charges made in the court complaint but not included in the EEOC

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charge itself.” Id. (internal quotation marks omitted). Therefore, even if the court did not

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resolve the instant motion on the merits, Hall’s claim of sexual harassment would be barred at

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this time for failure to exhaust his administrative remedies.

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Overall, among other issues, plaintiffs have failed to make a showing sufficient to

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establish severe or pervasive conduct for their hostile work environment claims based on sex and

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sexual harassment. As such, defendant has proven that there is insufficient evidence of a

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genuine, material factual dispute on these claims. Accordingly, the court will grant defendant’s

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summary judgment motion with respect to plaintiffs’ Title VII hostile work environment and

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sexual harassment claims.

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James C. Mahan
U.S. District Judge

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B. Hostile work environment based on race

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Plaintiffs allege that defendant created a hostile work environment by discriminating

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against them on the basis of their race. (Doc. # 6). Plaintiffs claim that they “experienced

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frequent offensive racial remarks and conduct, at times almost daily.” (Doc. # 80).

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Alleged comments made to Carlson include a Caucasian usher’s statements that she was

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“going to take [Carlson’s] green card,” that “Mexicans take our jobs,” that she “couldn’t stand

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Mexicans,” that she “wishes [Carlson] was back in Mexico,” and that “the blacks and the

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Mexicans were taking the white people’s jobs.” (Doc. # 80).

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Carlson also claims that another Caucasian coworker, Richardson, made offensive

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comments regarding interracial marriage and stated that Carlson “needs to go back to Mexico.”

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(Doc. # 80). Carlson’s coworker Gozzi allegedly stated that he would “wipe his behind with the

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Mexican flag.” (Doc. # 80). Carlson also claims that another coworker, Guzman, called her a

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dirty Mexican. (Doc. # 80).

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Hall claims that Guzman frequently made racially derogatory remarks to Hall.

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Specifically, he alleges that Guzman brought up race daily, calling Hall a “Wayne Brady” and an

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“Obama black” and using the term “house n*gger.” (Doc. # 80). Hall contends that Guzman

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used “n*gger” at work about 25 to 30 times per month, “all the time.” (Doc. # 80).

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Hall further alleges that his coworker Hansill stated that Hall’s ancestors were “raped by

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French persons” and compared Hall’s skin color to that of Hansill’s black shoes. (Doc. # 80).

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Hall also claims that a coworker, Perry, used the word “colored” and told Hall that “for a black

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man you are good looking.” (Doc. # 80). Perry also supposedly asked Hall if an African-

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American baby would “lighten up,” comparing the color of the baby’s skin to a tablecloth. (Doc.

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# 80). Finally, Perry allegedly used the term “Swartzin-n*gger.” (Doc. # 80). Plaintiffs’

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deposition testimony supports these claims. (Docs. # 80-1, 80-2).

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At this stage of the proceedings, defendant has the burden to either present evidence

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negating plaintiffs’ claims or to demonstrate that plaintiffs have failed to show an essential

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element of their claims. See Celotex Corp., 477 U.S. at 323-24. Defendant has not met this

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James C. Mahan
U.S. District Judge

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burden. While defendant alleges that plaintiffs’ claims are untruthful, this is a factual dispute

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that cannot be resolved as a matter of law at this time.

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Viewing the evidence in the light most favorable to the non-moving party, plaintiffs have

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produced enough examples of alleged racial conduct to support a claim of hostile work

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environment under section 1981. Because the purported discriminatory conduct could have been

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sufficiently severe or pervasive to create a hostile work environment, defendant is not entitled to

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summary judgment on plaintiffs’ race claims.

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Further, plaintiffs’ claims are not barred by the four-year statute of limitations in section

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1981. “As noted, a plaintiff need not recite precise dates of an employer’s discriminatory

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conduct, especially where she alleges that the conduct was pervasive.” Dominguez-Curry v.

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Nevada Transp. Dep’t, 424 F.3d 1027, 1039 (9th Cir. 2005).

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Plaintiffs do not allege that they are entitled to recover for conduct occurring outside the

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statute of limitations. Further, they claim that they were discriminated against until the end of

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their employment with defendant in 2011. Because the evidence does not indisputably foreclose

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plaintiffs’ claims on statute of limitations grounds, summary judgment is also inappropriate on

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this basis.

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Finally, defendant argues that Hall cannot establish that he was subjectively offended by
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any racist comments based on his own use of racial epithets outside of the workplace. (Doc. #
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70). Hall’s own use of certain terminology outside of work is irrelevant to whether he or a
reasonable person in his position would be offended by coworkers’ targeted insults.
Accordingly, summary judgment will be denied on plaintiffs’ race discrimination claims.

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C. Retaliation
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Carlson alleges that she engaged in protected activity by complaining of discrimination
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and filing EEOC charges. (Doc. # 6). She claims that defendant retaliated against her by issuing
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negative reviews and firing her. (Doc. # 6).
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The parties acknowledge that in 2011, Carlson received multiple disciplinary citations for
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unsatisfactory job performance related to leaving her assigned work station. The parties do not
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James C. Mahan
U.S. District Judge

dispute the sharp increase in Carlson’s workplace citations leading up to her termination. As
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noted, temporal proximity can serve as circumstantial evidence of retaliation.

See Bell v.

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Clackamas Cty., 341 F.3d 858, 865 (9th Cir. 2003). Whether Carlson’s alleged misconduct was

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used as pretext to retaliate against her cannot be resolved as a matter of law at this time.

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With regard to Hall, plaintiffs do not allege particular instances of retaliation. Plaintiffs

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included exhibits purporting to provide evidence of retaliation with their response to defendant’s

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motion for summary judgment. Specifically, plaintiffs included what they claim to be Hall’s

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complaints, a counseling notice suspending Hall for one day without pay, and his EEOC charge

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alleging retaliation.

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documents have not been authenticated. (See doc. # 90). Thus, they may not be properly

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(Docs. # 80-38, 80-40, 80-55).

However, as mentioned above, these

considered in deciding the motion for summary judgment.

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Nevertheless, Hall testified in his deposition that after he complained about his

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supervisor’s purported discriminatory conduct, he received a write-up. (Doc. # 80-2). Further,

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Ladawndre Stinson, who worked in human resources for defendant, testified in her deposition

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that Hall received a verbal or written counseling and was also suspended. (Doc. # 80-28).

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Pursuant to the standard above, timing may provide circumstantial evidence of retaliatory

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action. Bell, 341 F.3d at 865. Further, any adverse employment action, not simply termination,

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may suffice to prove retaliation.

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evidence in the light most favorable to plaintiffs, a factfinder could determine that Hall suffered

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retaliation in response to his complaints. Accordingly, the court will deny summary judgment on

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plaintiffs’ retaliation claims.

Cornwell, 439 F.3d at 1034-35. Therefore, viewing the

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D. Constructive discharge

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Plaintiff Hall alleges that he was subjected to discriminatory working conditions that

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were so intolerable that he was forced to resign from his position. (Doc. # 6). It appears that

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Hall may be attempting to allege constructive discharge as evidence of retaliation. (Doc. # 80).

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However, retaliation and constructive discharge are two separate claims subject to

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different legal standards. Viewing the evidence in the light most favorable to Hall, the court will

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analyze Hall’s constructive discharge allegation as a separate claim as articulated in claim III of

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his complaint. (Doc. # 6).

James C. Mahan
U.S. District Judge

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Hall went on leave from his position with defendant in October 2011, allegedly due to

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stress from the claimed discrimination and racial comments. (Doc. # 80, 80-2). Hall’s physician

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corroborated that Hall sought leave due to the stressful environment at work, which caused him

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anxiety and other physical symptoms. (Doc. # 80).

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Defendant claims that the psychiatric examination of plaintiff Hall is unreliable.

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However, at this point in time, the court cannot decide this question as a matter of law. Hall has

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produced sufficient evidence to allow his claim of hostile work environment based on race to

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proceed.

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Because it is possible that Hall was subjected to a hostile work environment, it is also

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conceivable that such pervasive conduct led to Hall’s constructive discharge. Again, whether

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discriminatory conditions rose to a level warranting resignation is unclear, but it cannot presently

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be resolved as a matter of law. Thomas v. Douglas, 877 F.2d 1428, 1434 (9th Cir. 1989).

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Accordingly, summary judgment on Hall’s claim of constructive discharge will be denied.

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IV.

Conclusion

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Based on the above analysis, the court will grant summary judgment on plaintiffs’ hostile

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work environment claims for sexual harassment and sex discrimination. The court will deny

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summary judgment on plaintiffs’ remaining claims.

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For the foregoing reasons,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant’s motion for

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summary judgment, (doc. # 70), be, and the same hereby is, GRANTED in part and DENIED in

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part, pursuant to the foregoing.

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DATED September 26, 2014.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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