Jackson v. City of Las Vegas et al

Filing 27

ORDER Denying Defendant's 19 Motion for Summary Judgment. Signed by Judge Richard F. Boulware, II on 9/19/2016. (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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***

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MICHAEL D. JACKSON,

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Plaintiff,

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Case No. 2:14-cv-01794-RFB-VCF
ORDER

v.
CITY OF LAS VEGAS, et. al,

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Defendants.

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I.

INTRODUCTION

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Before the Court is Defendant’s Motion for Summary Judgment. ECF No. 19. This case

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arises from the termination of Plaintiff Michael Jackson from his position with the Defendant City

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of Las Vegas’s Fire and Rescue Department in May 2013. For the reasons stated below the Court

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denies Defendant’s Motion.

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II.

BACKGROUND

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Plaintiff alleges the following causes of action: 1) Title VII – Race discrimination; 2) NRS

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Section 613.330 – Race discrimination; 3) Section 1983 – Equal Protection; 4) Section 1985 –

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Conspiracy for discrimination; 5) Section 1981 Claims against the City; 6) Tortious discharge; 7)

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Negligent training, supervision and retention; and 8) Defamation.

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This case was removed on October 28, 2014. ECF No. 1. Defendant filed a Motion for

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Summary Judgment on February 3, 2016. ECF No. 19. The Court held a hearing on July 20, 2016

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regarding this Motion.

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III.

LEGAL STANDARD

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

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interrogatories, and admissions on file, together with the affidavits, if any, show “that there is no

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

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

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the propriety of summary judgment, the court views all facts and draws all inferences in the light

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most favorable to the nonmoving party. Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir.

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2014). If the movant has carried its burden, the non-moving party “must do more than simply show

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that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a

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whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine

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issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (alteration in original) (internal quotation

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marks omitted).

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IV.

UNDISPUTED AND DISPUTED FACTS

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The following facts are undisputed by the parties: Plaintiff Michael Dwayne Jackson is an

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African American male. Plaintiff was hired by Las Vegas Fire and Rescue (LVFR) on or about

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March 29, 1993. D.’s Ex. A at 6. Jackson was promoted to Fire Training Officer on or about April

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2006. Id. at 7. Jackson was certified as a Fire Instructor by the Nevada State Fire Marshal. Id. at

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8. He was also a Nevada Fire Marshal Test Validator. Id. at 9.

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LVFR began a Fire Academy in October 2012 to admit the 2013 Class. Id. at 21. The 2013

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Class was unsuccessful in obtaining certification in Hazardous Materials and Hazardous

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Communications via the Nevada State Fire Marshal in October 2012. Id. at 26. The second attempt

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to certify the Class was on January 11, 2013. Id.

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Battalion Chief Maureen Higgins-Teague, Jackson's Supervisor, requested Jackson to

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come in on his day off, on overtime, to proctor the practical and written exams for Hazardous

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Materials and Hazardous Communications. Id. The practical component of the exam never

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occurred. Id. at 47. While Jackson did not see anyone cheating during the exam, he admitted to

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leaving the room multiple times during the exam. Id. at 41, 65. Jackson failed to read all of the 17

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points for their instructions [to the recruits] prior to each exam, as required by the State Fire

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Marshal's Procedures. Id. at 41. Jackson signed off on the exams indicating that both the practical

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and written portions of the exam were complete. Id.

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As a result of an internal investigation of the January 2013 examination, Jackson was

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terminated from his employment with LVFR on May 15, 2013. D.’s Ex. C. Additionally, the 2013

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Class failed their examinations and were separated from the City of Las Vegas. D.’s Ex. B. Aside

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from Jackson and the 2013 Class, no one else was disciplined regarding the incident.

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The following facts remain disputed. The parties dispute whether Jackson was provided

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the proper resources to conduct both the practical and written components of the exam he was

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asked to proctor, and whether Jackson was even authorized to administer the written exam. The

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parties dispute in what capacity Jackson was performing while proctoring the exam—specifically,

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whether he was working in the capacity of a Lead Examiner for the State Fire Marshal’s Office or

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for LVFR. The parties dispute whether LVFR failed to follow policy in scheduling the

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examination. The parties dispute whether there was a pattern and practice of just signing off on

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examinations for LVFR personnel, regardless of whether the applicant actually successfully

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completed the exam. The parties dispute whether Jackson was following orders from Ms. Higgins-

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Teague when he signed the practical exam forms without completing the actual testing. The parties

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dispute whether Jackson was chosen to be the proctor and therefore fail because of a discriminatory

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culture within the LVFR against people who are African American. The parties dispute whether

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Fire Chief Smith knew about Ms. Higgins-Teague’s actions and assisted her in discriminating

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against Jackson. The parties dispute whether Jackson was terminated as a result of a

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comprehensive investigation by LVFR.

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V.

DISCUSSION

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In its Motion, Defendant argues it is entitled to summary judgment on all claims because

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LVFR had just cause for termination. Specifically, Defendant argues that Jackson admitted to the

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allegations against him in the Notice of Administrative Hearing for Proposed Disciplinary Action

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(“Notice”) for: 1) leaving the testing room during the exam; 2) failing to properly instruct recruits

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prior to testing; and 3) falsifying documents to suggest that practical tests were administered when

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they were not. D.’s Ex. B.

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In response, Plaintiff states that it construes Defendant’s argument as primarily an

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argument against Plaintiff’s Title VII race discrimination claim and addresses the Motion as such.

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Plaintiff argues he was not terminated for just cause, and that the bases for his termination are mere

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pretext for the true reasons for firing him: unlawful race-based discrimination.

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The Court agrees that the Defendant’s argument most resembles a challenge to Plaintiff’s

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discrimination claim, though the Defendant maintains its argument applies to Plaintiff’s eight

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causes of action. Nonetheless, for the reasons stated, the Court is unpersuaded that Defendant is

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entitled to summary judgment, and therefore denies Defendant’s motion as to all claims, to the

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extent its Motion can be construed as applying to all claims.

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A. Race discrimination
1. Legal Standard

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The Supreme Court has held that a “worker who seeks to show disparate treatment through

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indirect evidence may do so through application of the McDonnell Douglas framework. That

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framework requires a plaintiff to make out a prima facie case of discrimination. But it is ‘not

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intended to be an inflexible rule.’ Rather, an individual plaintiff may establish a prima facie case

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by ‘showing actions taken by the employer from which one can infer, if such actions remain

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unexplained, that it is more likely than not that such actions were based on a discriminatory

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criterion illegal under’ Title VII. The burden of making this showing is ‘not onerous.’ In particular,

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making this showing is not as burdensome as succeeding on ‘an ultimate finding of fact as to’ a

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discriminatory employment action. Neither does it require the plaintiff to show that those whom

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the employer favored and those whom the employer disfavored were similar in all but the protected

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ways.” Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1353-54 (2015) (internal citations

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omitted).

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“To establish a prima facie case under McDonnell Douglas, a plaintiff must demonstrate

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that: (1) he belonged to a protected class; (2) he was qualified for his job; (3) he was subjected to

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an adverse employment action; and (4) similarly situated employees not in his protected class

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received more favorable treatment.” Anthoine v. N. Cent. Ctys. Consortium, 605 F.3d 740, 753

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(9th Cir. 2010).

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Nevada applies the same analysis to its own state anti-discrimination laws. See Pope v.

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Motel 6, 114 P.3d 277, 280 (Nev. 2005) (“In light of the similarity between Title VII of the 1964

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Civil Rights Act and Nevada's anti-discrimination statutes, we have previously looked to the

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federal courts for guidance in discrimination cases. Under NRS 613.330(1), it is an unlawful

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employment practice to discharge any individual because of his or her race, color, sex, religion,

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sexual orientation, age, disability or national origin.”).

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2. Discussion

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Defendant does not appear to argue Plaintiff has not made a prima facie case of

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discrimination. Rather, Defendant appears to argue that it has a legitimate, nondiscriminatory

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reason for terminating Plaintiff: that he allegedly failed to read instructions prior to the exam; left

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the room on multiple occasions, and indicated that the Class had completed the practical

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component of the exam when they had not. Therefore, under the McDonnell Douglas framework,

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Plaintiff must show by a preponderance of the evidence that these alleged reasons are pretextual.

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Plaintiff argues the testing procedure violations were a mere pretext for his termination for

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the following reasons: 1) there is no evidence that such violations are a terminable offense and,

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relatedly, that Plaintiff’s signing off on the form indicating that the exams were complete was

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sanctioned activity at LVFR by proctors, regardless of whether the exam was properly completed;

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2) Plaintiff’s supervisor’s lack of experience and careless oversight created a “flawed testing

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environment” on January 11, 2013 that was the true reason why the Class failed the test; 3) Plaintiff

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was set up to fail from the beginning and was a scapegoat because he is African-American, and

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there is a history of discrimination against African-Americans by Defendant.

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In reply, Defendant argues that any minor errors by supervisor Teague had no impact on

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the actions taken by Plaintiff that resulted in his termination. Defendant also argues that Jackson

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was not set up to fail, and that his own decisions resulted in his termination. Last, Defendant argues

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that Jackson’s violations, which resulted in recruits failing the exam and $700,000 in damages,

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was a terminable offense.

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The Court finds that the Plaintiff has sufficiently met his burden in showing, by a

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preponderance of the evidence, that Defendant’s alleged basis for his termination was pretextual.

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In particular, the Court finds that, given that signing off on these exams was arguably sanctioned

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activity according to former employee Douglas Johnson’s testimony. P.’s Ex. W at 8 (“Q: Would

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it have been proper for him to sign off on a certification that wasn’t complete or that was incorrect?

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A: It wouldn’t have been unusual with the history that we had with the state.”). The Court also

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finds that Plaintiff has presented evidence of a culture of discrimination against African-Americans

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by Defendant. Plaintiff provided testimony by Mr. Johnson, an African-American man who

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worked as a battalion chief for years, regarding this culture. P.’s Ex. W at 25-26 (“[D]o you believe

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that blacks were treated differently than other races in the fire department? A: Yes…we were

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definitely more scrutinized.”). Specifically, Mr. Johnson testified that, as a result of this culture,

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an anonymous survey was conducted whose results shocked the City and, as a result, the City

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began a diversity class, though it was never completed. Id. at 25-27. Last, the Court finds that

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Plaintiff has provided evidence that other LVFR employees who were involved in the January

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2013 incident—namely his supervisor Teague—were not disciplined. The Court agrees that this

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supports Plaintiff’s argument that the reasons for firing Plaintiff were pretextual. The Court is

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unpersuaded by Defendant’s rebuttal that the separation of the recruits, whose employment with

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LVFR was contingent upon passing the exam, rebuts the fact that Teague and other employees of

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LVFR did not suffer adverse employment action.

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Therefore the Court denies Defendant’s Motion as to Plaintiff’s race discrimination claims.

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The Court does not address Plaintiff’s miscellaneous arguments regarding that Defendant LVFR

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had no jurisdiction to discipline him while he was working as a proctor, because proctors serve the

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State Fire Marshal’s Office. P.’s Ex. Q (request for state certification testing), Z (timesheet).

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Moreover, given that Defendant itself maintains that its argument applies to all of

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Plaintiffs’ causes of action, for the same reasons stated above, the Court denies Defendant’s motion

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with respect to the remaining causes of action.

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VI.

CONCLUSION

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Therefore, the Court DENIES Defendant’s Motion for Summary Judgment. ECF No. 19.

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DATED: September 19, 2016.

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__________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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