Schwartz v. Clark County et al

Filing 74

ORDER Granting Defendants' 71 Second Motion for Summary Judgment. Signed by Judge James C. Mahan on 6/20/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARK J. SCHWARTZ,

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Plaintiff(s),

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Case No. 2:13-CV-709 JCM (VCF)
ORDER

v.
CLARK COUNTY, NEVADA, et al.,

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Defendant(s).

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Presently before the court is defendants Clark County’s (“County”) and Jacquelin R.

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Holloway’s (“Holloway”; collectively “defendants”) second motion for summary judgment. (ECF

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No. 71). Plaintiff Mark J. Schwartz (“plaintiff”) filed a response (ECF No. 72), to which

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defendants replied (ECF No. 73).

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I.

Facts

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The instant actions involve allegations of wrongful termination pursuant to 42 U.S.C. §

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1983, the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment

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Act (“ADEA”). (ECF No. 2-2).

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Plaintiff began working for County as an auditor on August 17, 1992. (ECF No. 71-1 at

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12). In 2000, plaintiff was promoted to senior management analyst in the Clark Country Business

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License Department (“BL”). (ECF No. 71-1 at 13). In either 2007 or 2008, plaintiff received an

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ADA workplace accommodation to adjust the size of his workplace. (ECF No. 71-1 at 19). From

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2005–09, plaintiff received regular, positive employment evaluations noting his “meritorious” and

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“exemplary” performance. (ECF No. 71-1 at 16–18).

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In 2008, Clark County Human Resources (“HR”) began to review whether the job title,

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management analyst, was an appropriate classification and conducted a county-wide “management

James C. Mahan
U.S. District Judge

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analyst study” in which plaintiff participated and completed a “job description questionnaire.”

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(ECF No. 71-1 at 20, 45). Subsequently, in August 2009, HR recommended seventeen (17)

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possible job title changes for forty-four (44) employees recognized as management analysts. (ECF

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No. 71-1 at 45–46). Pursuant to the management analyst study, three of the five management

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analysts at BL, excluding plaintiff, received new job titles. (ECF No. 71-1 at 38–39).

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In February 2010, the county manager sent Holloway, director of business licensing for

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Clark County, a “mandate” that instructed her “to do a reduction in force” by dismissing employees

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to decrease BL’s budget by 8 percent. (ECF No. 71-1 at 40). To comply with the budget reduction,

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Holloway determined that “between 8 to 12” employees would be dismissed, including

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a manager of finance, a senior management analyst, a management analyst, a
business license agent, an office supervisor, [an] office assistant and an IT . . .
support person . . . . [b]ased on [BL’s] needs and functions in the department and
also functions and duties that could be absorbed by others.
(ECF No. 71-1 at 41–42).

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Because his job title had not been changed subsequent to the management analyst study,
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plaintiff was notified on June 18, 2010, that he would be dismissed as senior management analyst
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on July 6, 2010. (ECF No. 71-1 at 20). As a member of a union, SEIU Local 1107, which had
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made a collective bargaining agreement with County, plaintiff appealed his dismissal pursuant to
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the process provided under the terms of the agreement. (ECF No. 71-1 at 15, 23). Upon reviewing
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plaintiff’s “statements and documents and other information,” the layoff review committee
affirmed plaintiff’s layoff. (ECF No. 71-1 at 24).

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Subsequently, plaintiff filed the underlying complaint alleging three causes of action: (1)
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violation of the ADEA; (2) violation of the ADA; and (3) violation of civil rights under § 1983.
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(ECF No. 2-2). The court granted defendants’ motion for summary judgment (ECF No. 22),

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finding, inter alia, that plaintiff failed to raise a genuine dispute of material fact as to whether his
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termination was motivated by his disability or his age, rather than by legitimate budgetary
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concerns. (ECF No. 43).
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Plaintiff appealed (ECF No. 46), and the Ninth Circuit reversed and remanded on May 27,
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2016 (ECF No. 58). The Ninth Circuit determined that plaintiff raised a genuine dispute of
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material fact as to whether his selection for layoff was pretext for unlawful discrimination and that
James C. Mahan
U.S. District Judge

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the evidence supporting plaintiff’s ADA and ADEA claims raised a triable issue as to his § 1983

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claim against defendant Holloway. (ECF No. 58).

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In the instant motion, defendants move for summary judgment as to plaintiff’s § 1983 claim

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against Holloway based on qualified immunity, arguing that she was “reasonably following the

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directive of her [m]anager to reduce her labor force in the BL department.” (ECF No. 71 at 16).

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II.

Legal Standard

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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 any,

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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 is

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“to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317,

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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 be

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entitled to a denial of summary judgment, the nonmoving 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. The moving

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party must first satisfy its initial burden. “When the party moving for summary judgment would

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bear the burden of proof at trial, it must come forward with evidence which would entitle it to a

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directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has

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the initial burden of establishing the absence of a genuine issue of fact on each issue material to

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its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000)

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(citations omitted).

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By contrast, when the nonmoving party bears the burden of proving the claim or defense,

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

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

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to make a showing sufficient to establish an element essential to that party’s case on which that

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party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24. If the moving

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U.S. District Judge

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party fails to meet its initial burden, summary judgment must be denied and the court need not

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consider the nonmoving party’s evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–

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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’ differing

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versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626,

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631 (9th Cir. 1987).

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In other words, the nonmoving party cannot avoid summary judgment by relying solely on

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conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040,

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1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the

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pleadings and set forth specific facts by producing competent evidence that shows a genuine issue

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for trial. See Celotex, 477 U.S. at 324.

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At summary judgment, a court’s function is not to weigh the evidence and determine the

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truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 249 (1986). The evidence of the nonmovant is “to be believed, and all

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justifiable inferences are to be drawn in his favor.” Id. at 255. But if the evidence of the

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nonmoving party is merely colorable or is not significantly probative, summary judgment may be

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granted. See id. at 249–50.

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III.

Discussion

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Defendants move for summary judgment based on qualified immunity grounds in the

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interest of Holloway. (ECF No. 71). In response, plaintiff argues that, pursuant to the Ninth

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Circuit’s reversal and remand, the “case must be scheduled for a jury trial.” (ECF No. 72 at 5).

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The court disagrees.

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James C. Mahan
U.S. District Judge

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When a plaintiff brings a claim under 42 U.S.C. § 1983, government officials1 sued in their

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individual capacities may raise the affirmative defense of qualified immunity. See, e.g., Spoklie v.

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Montana, 411 F.3d 1051, 1060 (9th Cir. 2005); Goodman v. Las Vegas Metro. Police Dep’t, 963

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F. Supp. 2d 1036, 1058 (D. Nev. 2013). Qualified immunity protects public officials “from

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liability for civil damages insofar as their conduct does not violate clearly established statutory or

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constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457

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U.S. 800, 818 (1982).

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“Qualified immunity balances two important interest—the need to hold public officials

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accountable when they exercise power irresponsibly, and the need to shield officials from

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harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.

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Callahan, 555 U.S. 223, 231 (2009). “The principles of qualified immunity shield an officer from

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personal liability when an officer reasonably believes that his or her conduct complies with the

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law.” Id. at 244. It allows for officials to make reasonable mistakes regarding the lawfulness of

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their conduct by excusing reasonable mistakes. See id. at 231.

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Deciding whether an officer is entitled to qualified immunity is a two-prong inquiry. First,

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the court assesses whether the plaintiff has alleged or shown a violation of a constitutional right.

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Id. at 232. Second, the court decides whether the right at issue was clearly established at the time

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of the defendant’s alleged misconduct. Id.

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To overcome a claim of qualified immunity, the plaintiff bears the burden of proof on both
points. See Cruz v. Kauai County, 279 F.3d 1064, 1069 (9th Cir. 2002).

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On appeal, the Ninth Circuit determined that plaintiff “raised a genuine dispute of material

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fact as to whether his selection for a layoff was . . . unlawful” and that “evidence supporting

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[plaintiff’s] ADA and ADEA claims also raises a triable issue.”

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Accordingly, because the Ninth Circuit determined that whether a constitutional right was violated

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is a triable issue, plaintiff satisfies the first qualified immunity prong.

(ECF No. 58 at 2–4).

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James C. Mahan
U.S. District Judge

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Directors working for Clark County are considered government officials within the scope
of qualified immunity. See Henry A. v. Willden, 678 F.3d 991, 999 (9th Cir. 2012).
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The second prong focuses on whether, at the time of the alleged violation, a reasonable

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officer would have known, based on “clearly established” authority, that the conduct at issue

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violated a constitutional right. See, e.g., Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011)

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(“For the second step in the qualified immunity analysis—whether the constitutional right was

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clearly established at the time of the conduct—we ask whether its contours were sufficiently clear

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that every reasonable official would have understood that what he is doing violates that right.”

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(internal quotation marks and citations omitted)).

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The second “clearly established” prong of the qualified immunity analysis involves the

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issue of “fair warning”—specifically, whether prior decisions gave reasonable warning that the

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conduct at issue violated a constitutional right. See Brosseau v. Haugen, 543 U.S. 194, 199 (2004)

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(per curiam). “[T]he right the official is alleged to have violated must have been ‘clearly

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established’ in a more particularized, and hence more relevant, sense: [t]he contours of the right

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must be sufficiently clear that a reasonable official would understand that what he is doing violates

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that right.” Saucier v. Katz, 533 U.S. 194, 202 (2001) (quoting Anderson v. Creighton, 483 U.S.

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635, 640 (1987)). Thus, the dispositive question is “whether it would be clear to a reasonable

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officer that his conduct was unlawful in the situation he confronted.” Id.

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The United States Supreme Court recently reiterated “the longstanding principle that

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‘clearly established law’ should not be defined ‘at a high level of generality.’” White v. Pauly, 137

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S. Ct. 548, 552 (2017) (per curiam) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). “[T]he

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clearly established law must be ‘particularized’ to the facts of the case.” Id. (citing Anderson, 483

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U.S. at 640).

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In the Ninth Circuit, a court begins its inquiry of whether a right is clearly established by

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looking to binding precedent on the allegedly violated right. Boyd v. Benton Cnty., 374 F.3d 773,

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781 (9th Cir. 2004). “While [w]e do not require a case directly on point, existing precedent must

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have placed the statutory or constitutional question beyond debate.” Mattos, 661 F.3d at 442

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(internal quotation marks and citation omitted).

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In response to defendants’ second motion for summary judgement, plaintiff makes two

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arguments against Holloway’s qualified immunity defense: (1) that the “Ninth Circuit specifically

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U.S. District Judge

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found that issues of triable fact exist as to whether Ms. Holloway violated § 1983 . . . and the case

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must proceed to trial to have the facts determined by the trier of fact”; and (2) that “[m]atters that

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have been decided on appeal are beyond the jurisdiction of the lower court.” (ECF No. 72 at 3–

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4).

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Plaintiff’s arguments, however, miss the point. Plaintiff cites to no cases that indicate

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whether his right was clearly established at the time of Holloway’s alleged misconduct. (See ECF

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No. 72). The Ninth Circuit’s memorandum does not address qualified immunity. Specifically, the

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memorandum does not discuss whether defendant’s alleged constitutional violation was clearly

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established and thus has no impact as to whether summary judgment is appropriate based on

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qualified immunity.

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Plaintiff fails to meet his burden of establishing a clearly established right at the time of

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Holloway’s alleged misconduct by citing “existing precedent” that “places the statutory or

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constitutional question beyond debate.” Mattos, 661 F.3d at 442 (internal quotation marks and

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citation omitted).
Accordingly, plaintiff fails to satisfy the two-prong inquiry to determine whether Holloway

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is not entitled to qualified immunity.

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IV.

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Conclusion
In sum, defendants’ second motion for summary judgment as to Holloway’s qualified

immunity on plaintiff’s §1983 claim is granted.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendants’ motion for

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summary judgment (ECF No. 71) be, and the same hereby is, GRANTED.
DATED June 20, 2017.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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