Jones v. State of Nevada ex rel Board of Regents for the Nevada System of Higher Education

Filing 29

ORDER. IT IS ORDERED that the Defendants' motion to amend the scheduling order 25 is GRANTD.Plaintiff's motion for summary judgment 12 is DENIED and defendant's motion for summary judgment 18 is GRANTED.IT IS FURTHER ORDERED that the Clerk of Court enter judgment in favor of theDefendants and against the Plaintiff. Signed by Judge Andrew P. Gordon on 9/6/2016. (Copies have been distributed pursuant to the NEF - DL)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 5 DR. FRANCIS JONES, Plaintiff, 6 7 8 9 10 v. THE STATE OF NEVADA EX REL. BOARD OF REGENTS FOR THE NEVADA SYSTEM OF HIGHER EDUCATION ON BEHALF OF THE UNIVERSITY OF NEVADA, LAS VEGAS, SCHOOL OF DENTAL MEDICINE, et al., 11 ORDER (1) DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, (2) GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, AND (3) GRANTING DEFENDANTS’ MOTION TO EXTEND THE DISPOSITIVE MOTION DEADLINE Defendants. (ECF Nos. 12, 18, 25) 12 13 Case No. 2:14-cv-01930–APG–NJK Dr. Francis Jones served as Director of Continuing Education for the University of 14 Nevada, Las Vegas, School of Dental Medicine from 2011 through 2014. During this time, he 15 received unfavorable performance evaluations and took leave under the Family and Medical 16 Leave Act, (“FMLA”), 29 U.S.C. § 2601, et seq. Three months after taking FMLA leave, the 17 University terminated his directorship and returned him to his previous position as an assistant 18 professor. Five months later, Jones filed this lawsuit alleging that the University interfered with 19 his FMLA rights. 20 Jones seeks summary judgment because it is undisputed that he took FMLA leave and lost 21 his directorship three months later. The University also moves for summary judgment, arguing 22 that its decision to terminate Jones’s directorship is causally unrelated to Jones’s decision to take 23 FMLA leave.1 24 25 I grant the University’s motion to amend the scheduling order because denial of the motion would result in an unnecessary trial and waste judicial resources. I deny Jones’s motion 26 27 28 1 Because the University moved for summary judgment after the dispositive motion deadline, it seeks to amend that deadline so that I may consider its motion. ECF No. 25. 1 for summary judgment because he lacks evidence to show a causal connection between his use of 2 FMLA leave and the adverse employment action. I also grant the University’s motion for 3 summary judgment because it is undisputed that Jones received unfavorable performance reviews 4 and his directorship was terminable at the University’s discretion “without cause.” 5 I. BACKGROUND 6 Jones began teaching at the University on July 1, 2005, first as a part-time instructor and 7 later as a full-time, non-tenure track assistant professor. ECF No. 18-1 at ¶¶ 5, 6. In June 2011, 8 the University offered him a one-year administrative appointment as the Director of Continuing 9 Education, with an additional $7,000.00 in compensation. Id. at ¶ 7. The Director of Continuing 10 Education serves at the University’s discretion and can be terminated at any time “without cause.” 11 Id. at Ex. A-4. 12 In 2012, Jones received an unfavorable performance review, which stated that he had 13 trouble communicating with his colleagues, was reactive rather than proactive, and struggled with 14 organizational and follow-up skills. ECF No. 18-2 at ¶ 5. One year later, Jones received an 15 “unsatisfactory” performance review, which stated this his communication skills had deteriorated 16 and he had failed to follow his superior’s directions. Id. at ¶ 6. 17 One month later, Jones placed a document in a visiting faculty member’s office that 18 contained that faculty member’s salary, title, and multiple pictures of Bozo the Clown. ECF No. 19 18-1 at ¶ 10. When confronted about the document, Jones admitted that he created it and put it in 20 the professor’s office as a “gag.” Id. As a result, the University issued Jones a Letter of 21 Instruction explaining that his conduct was unprofessional. Id. at ¶ 11. 22 In January 2014, Jones took intermittent FMLA leave to care for a family member. ECF 23 No. 12-1. Three months later, the University terminated his directorship, effective May 1, 2014. 24 ECF No. 12-4. The letter noted “numerous” concerns with his performance, as documented by 25 his annual reviews. Id. The letter also said that Jones would return to a full-time teaching position 26 as an assistant professor in residence. Id. Five months later, Jones filed suit against the 27 University, alleging that the University unlawfully interfered with his FLMA leave. 28 Page 2 of 6 1 II. MOTION TO AMEND 2 Jones argues that the University’s motion for summary judgment should be denied 3 because it is untimely. In response, the University moves to amend the discovery plan and 4 scheduling order so that I may consider the untimely motion. Generally, a discovery plan and scheduling order cannot be modify without good cause 5 6 and a showing that the party seeking amendment was diligent. See Fed. R. Civ. P. 16; Johnson v. 7 Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Here, the scheduling order set 8 August 14, 2015 as the dispositive motion deadline. ECF No. 10 at 2. Both parties missed this 9 deadline and filed documents on August 15, 17, 18, and 21. See ECF Nos. 12, 13, 14, 18. Under 10 these circumstances, good cause exists to consider the untimely filed motions because denial of 11 the motions would result in an unnecessary trial and, therefore, waste judicial resources. See 12 Dayton Valley Inv’rs, LLC v. Union Pac. R. Co., 664 F. Supp. 2d 1174, 1179 (D. Nev. 2009) 13 (citing Fed. R. Civ. P. 1). I therefore grant the University’s motion to amend and consider both 14 parties’ motions. 15 III. 16 SUMMARY JUDGMENT MOTIONS Summary judgment is appropriate if the pleadings, discovery responses, and affidavits 17 demonstrate “there is no genuine dispute as to any material fact and the movant is entitled to 18 judgment as a matter of law.” Fed. R. Civ. P. 56(a), (c). A fact is material if it “might affect the 19 outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 20 (1986). An issue is genuine if “the evidence is such that a reasonable jury could return a verdict 21 for the nonmoving party.” Id. 22 The party seeking summary judgment bears the initial burden of informing the court of the 23 basis for its motion and identifying those portions of the record that demonstrate the absence of a 24 genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden 25 then shifts to the non-moving party to go beyond the pleadings and set forth specific facts 26 demonstrating there is a genuine issue of material fact for trial. Fairbank v. Wunderman Cato 27 Johnson, 212 F.3d 528, 531 (9th Cir. 2000). I view the evidence and reasonable inferences in the 28 Page 3 of 6 1 light most favorable to the non-moving party. James River Ins. Co. v. Hebert Schenk, P.C., 523 2 F.3d 915, 920 (9th Cir. 2008). 3 A. Authentication & Supplementation 4 Jones argues that the University’s exhibits should be stricken because the University 5 failed to authenticate its exhibits as required by Orr v. Bank of Am., 285 F.3d 754 (9th Cir. 2002). 6 Jones is mistaken. The University’s motion for summary judgment contains two affidavits that 7 authenticate the attached exhibits, as required by Orr. See ECF No. 18 at Ex. A (West Aff.), Ex. 8 B (Skelton Aff). 9 Jones next argues that the University’s exhibits should be excluded because they were 10 produced after the close of discovery. Jones is, again, mistaken. The University disclosed the 11 documents in September 2014. See ECF No. 24 at 5–6. Even if the disclosures were late, Jones 12 failed to argue that the University’s alleged failure to comply with the discovery rules was 13 prejudicial, disrupted trial, or the result of bad faith. See Fed. R. Civ. P. 37(c)(1); Lanard Toys 14 Ltd. v. Novelty, Inc., 375 F. App’x 705, 713 (9th Cir. 2010) (citing David v. Caterpillar, Inc., 324 15 F.3d 851, 857 (7th Cir. 2003)). I will therefore consider the University’s exhibits when 16 examining the parties’ motions for summary judgment. 17 B. Merits 18 The FMLA provides job security to employees who must be absent from work up to 12 19 weeks because of serious health conditions. 29 U.S.C. § 2612. It is a violation of the FMLA for 20 an employer to “interfere with, restrain, or deny the exercise of or the attempt to exercise any 21 right provided under [this act].” 29 U.S.C. § 2615. Courts have recognized two separate causes of 22 action on FMLA claims: (1) retaliation or discrimination and (2) interference. See Sanders v. City 23 of Newport, 657 F.3d 772, 777 (9th. Cir. 2011). 24 However, “complaints alleging adverse employment actions taken against employees 25 because they have used FMLA leave” are construed as “claims of interference” rather than 26 “claims of retaliation or discrimination.” Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1124 27 (9th Cir. 2001). To state a claim for FMLA interference, a plaintiff must demonstrate that (1) he 28 Page 4 of 6 1 took FMLA leave, (2) the defendant subjected him to an adverse employment action, and (3) the 2 adverse action was causally linked to the FMLA leave. Id. at 1124–25. Stated differently, a 3 plaintiff “need only prove by a preponderance of the evidence that [his] taking of FMLA- 4 protected leave constituted a negative factor in the decision to terminate [him].” Id. at 1124. 5 The parties agree that Jones satisfied the first element because he took FMLA leave 6 beginning on January 13, 2014. Jones argues that he suffered an adverse employment action 7 because he received an unfavorable performance evaluation only after he took FMLA leave, at 8 which point he was demoted. See ECF Nos. 12 at 5:10–11; 23 at 7:8–10. The University denies 9 that Jones suffered an adverse employment action because his position as the director could be 10 terminated “without cause.” The University also denies that Jones’s decision to take FMLA leave 11 constituted a negative factor in the decision to terminate his directorship. 12 Even viewing the facts in the light most favorable to Jones, the facts support the 13 University’s contention that Jones’s FMLA leave did not constitute a negative factor in the 14 decision to terminate him. Jones presents no direct evidence that the University removed him 15 from his position as the director because he took FMLA leave. The only evidence Jones offers is 16 the proximity in time between his leave and his demotion. Although temporal proximity may 17 support the causation element to an FMLA interference claim, “[g]enerally, more than a temporal 18 proximity between protected activity and termination is required to present a genuine issue of fact 19 for trial.” Malloy v. U.S. Postal Serv., 756 F.3d 1088, 1091 (8th Cir. 2014) (Colloton, J.). 20 Additionally, if an employee suffers an adverse employment action after taking FMLA 21 leave, the employer must prove that the employee would have been dismissed regardless of the 22 employee’s request for, or taking of, FMLA leave. Sanders v. City of Newport, 657 F.3d 772, 780 23 (9th Cir. 2011) (citing 29 C.F.R. § 825.214). The University satisfies this burden by showing that 24 Jones received unfavorable performance evaluations, acted unprofessionally on several occasions, 25 and could be removed without cause. See, e.g., ECF No. at Ex. A-2, A-7, B-1. Jones asserts 26 various arguments to show that his unfavorable performance evaluations were pre-textual, that his 27 directorship should not have been terminated because he was beating the University’s 28 Page 5 of 6 1 expectations, and that he was actually terminated because he took FMLA leave. See, e.g., ECF 2 No. 27 (discussing some of Jones’s successes and alleging that the University was “in reality” 3 attempting to fulfill the director’s duties without Jones’s involvement). However, Jones’s 4 subjective belief is insufficient to survive summary judgment. And any evidence showing that he 5 may have beaten some of the University’s expectations is immaterial because he served as the 6 director at the University’s discretion and there is no evidence of pretext. Because the evidence shows that Jones’s decision to take FMLA leave did not constitute a 7 8 negative factor in the University’s decision to terminate his directorship, Jones’s FMLA claim 9 fails as a matter of law. As a result, I do not need to address the parties’ arguments regarding 10 whether the termination of his directorship constituted an adverse employment action. 11 III. 12 13 CONCLUSION IT IS THEREFORE ORDERED that the University of Nevada, Las Vegas, School of Dental Medicine’s motion to amend the scheduling order (ECF No. 25) is GRANTED. 14 IT IS FURTHER ORDERED that the plaintiff Dr. Francis Jones’s motion for summary 15 judgment (ECF No. 12) is DENIED and defendant University of Nevada, Las Vegas, School of 16 Dental Medicine’s motion for summary judgment (ECF No. 18) is GRANTED. 17 18 19 IT IS FURTHER ORDERED that the Clerk of Court enter judgment in favor of the University of Nevada, Las Vegas, School of Dental Medicine’s and against Dr. Francis Jones. DATED this 6th day of September, 2016. 20 21 22 ANDREW P. GORDON UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 Page 6 of 6

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