Wilson v. Nevada Affordable Housing Assistance Corp.

Filing 89

ORDER denying 71 Motion for Summary Judgment. Signed by Judge Andrew P. Gordon on 3/30/2017. (Copies have been distributed pursuant to the NEF - JM)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 NEDRA WILSON, 5 Plaintiff, 6 7 8 Case No. 2:15-cv-01387-APG-CWH v. NEVADA AFFORDABLE HOUSING ASSISTANCE CORPORATION, ORDER DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ECF No. 71) Defendant. 9 Plaintiff Nedra Wilson worked for defendant Nevada Affordable Housing Assistance 10 11 Corporation (NAHAC) as its controller. After she was fired, she filed this lawsuit against 12 NAHAC, alleging race discrimination and retaliation. NAHAC moves for summary judgment, 13 arguing there is no evidentiary basis to support a race discrimination claim because Wilson is 14 only speculating that race played a role in her termination. As to the retaliation claim, NAHAC 15 contends it had a legitimate reason for firing Wilson and there is no evidence of pretext. Wilson responds that she was fired for sharing her bank token1 but Caucasian employees 16 17 did the same thing and were not fired. She also argues that there is evidence of retaliation 18 because she was fired shortly after Kolleen Kelley took over as chair of the board for NAHAC; 19 Kelley had a retaliatory motive related to a separate lawsuit alleging race discrimination; Kelley 20 denied her involvement in the firing decision but NAHAC’s executive director, Amber Lopez 21 Lasater, says Kelley made the termination decision; and Lopez Lasater did not believe Wilson 22 should have been terminated. The parties are familiar with the facts of this case and I will not repeat them in detail here. 23 24 I deny NAHAC’s motion. 25 //// 26 //// 27 28 1 Essentially a key to authorize a wire transfer of funds. 1 2 I. ANALYSIS Summary judgment is appropriate if the pleadings, discovery responses, and affidavits 3 demonstrate “there is no genuine dispute as to any material fact and the movant is entitled to 4 judgment as a matter of law.” Fed. R. Civ. P. 56(a), (c). A fact is material if it “might affect the 5 outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 6 (1986). An issue is genuine if “the evidence is such that a reasonable jury could return a verdict 7 for the nonmoving party.” Id. 8 9 The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a 10 genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden 11 then shifts to the non-moving party to set forth specific facts demonstrating there is a genuine 12 issue of material fact for trial. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 13 2000). I view the evidence and reasonable inferences in the light most favorable to the non- 14 moving party. James River Ins. Co. v. Hebert Schenk, P.C., 523 F.3d 915, 920 (9th Cir. 2008). 15 A. Race Discrimination 16 Title VII makes it unlawful for an employer to discriminate against an individual with 17 respect to the terms, conditions, or privileges of employment because of the individual’s race. 42 18 U.S.C. § 2000e–2(a)(1). To establish a prima facie case of disparate treatment based on race, “a 19 plaintiff must offer evidence that give[s] rise to an inference of unlawful discrimination.” 20 Reynaga v. Roseburg Forest Prod., 847 F.3d 678, 690-91 (9th Cir. 2017) (quotation omitted). 21 “One way to establish an inference of discrimination” is by establishing a prima facie case under 22 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Id. Under McDonnell Douglas, a 23 plaintiff makes out a prima facie case by showing: (1) that she is a member of a protected class; 24 (2) that she was qualified for her position and performing her job satisfactorily; (3) that she was 25 subjected to an adverse employment action; and (4) that “similarly situated individuals outside 26 [her] protected class were treated more favorably, or other circumstances surrounding the adverse 27 28 Page 2 of 6 1 employment action give rise to an inference of discrimination.” Hawn v. Exec. Jet Mgmt., Inc., 2 615 F.3d 1151, 1156 (9th Cir. 2010) (quotation omitted). 3 If the plaintiff makes out a prima facie case, “the burden shifts to the defendant to provide 4 a legitimate, non-discriminatory reason for the adverse employment action.” Reynaga, 847 F.3d 5 at 690-91. “If the defendant meets this burden, then the plaintiff must . . . raise a triable issue of 6 material fact as to whether the defendant’s proffered reasons . . . are mere pretext for unlawful 7 discrimination.” Id. (quotation omitted, second alteration in original). 8 9 As an alternative to the McDonnell Douglas burden shifting analysis, a plaintiff facing a summary judgment motion “may simply produce direct or circumstantial evidence demonstrating 10 that a discriminatory reason ‘more likely than not motivated’ the employer.” Id. (quotation 11 omitted). Regardless of the method chosen, “very little evidence” is required for a plaintiff “to 12 survive summary judgment in a discrimination case, because the ultimate question is one that can 13 only be resolved through a searching inquiry—one that is most appropriately conducted by the 14 factfinder, upon a full record.” Id. (quotation omitted). 15 Wilson has presented evidence of a prima facie case. She is a member of a protected class 16 because she is African-American. She has presented evidence that she was qualified for the 17 position and performed her job satisfactorily. She was hired through a competitive hiring process 18 and there is no evidence of any disciplinary action or comments about poor performance prior to 19 the events immediately preceding her termination. ECF Nos. 78-2 at 13-15; 78-21 at 29-30 20 (former chair of the board testifying he heard no complaints about Wilson’s performance and he 21 believed she was making progress in addressing problems in the organization). She suffered an 22 adverse employment action when she was fired. Finally, she has presented evidence that 23 similarly situated individuals outside her protected class were treated differently. Specifically, 24 two Caucasian employees apparently shared their bank tokens and were not terminated for this 25 conduct. ECF No. 78-3 at 23-25; 78-24 at 4-5. Additionally, Lopez Lasater, who was the 26 executive director/chief executive officer and Wilson’s immediate supervisor, did not think 27 Wilson should have been fired. ECF No. 78-2 at 6. 28 Page 3 of 6 1 NAHAC offers a legitimate, non-discriminatory reason for Wilson’s termination. 2 According to NAHAC, Wilson released a wire transfer without authorization and shared her bank 3 token with other employees in violation of NAHAC policies. 4 Wilson has met her burden of raising a genuine dispute that these given reasons are 5 pretextual. As set forth above, similarly situated Caucasian employees were not fired for sharing 6 their bank tokens. Beck v. United Food & Commercial Workers Union, Local 99, 506 F.3d 874, 7 883 (9th Cir. 2007) (stating that “a showing of disparate treatment raises an inference of 8 discrimination ‘because experience has proved that in the absence of any other explanation it is 9 more likely than not that those actions were bottomed on impermissible considerations.’”) 10 (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 579-80 (1978)). Additionally, Wilson 11 has presented evidence that she was disciplined for authorizing a wire transfer even though Lopez 12 Lasater was aware of and did not object to Wilson’s actions at the time, and Lopez Lasater did not 13 believe that Wilson should have been terminated. ECF Nos. 78-1 at 113-15; 78-2 at 6; 78-22 at 14 14-15, 20. I therefore deny NAHAC’s motion for summary judgment on Wilson’s race 15 discrimination claim. 16 B. Retaliation 17 To establish a prima facie case of retaliation, a plaintiff must show that: (1) she engaged in 18 a protected activity under Title VII, (2) her employer subjected her to an adverse employment 19 action, and (3) there is a causal link between the two. Reynaga, 847 F.3d at 693. As with the 20 disparate treatment claim, if the plaintiff establishes a prima facie case, the burden shifts to the 21 defendant to offer a legitimate, non-retaliatory reason for the adverse employment action. Id. If 22 the employer meets this burden, then the plaintiff bears the burden of showing that the employer’s 23 proffered reasons are pretextual. Id. Evidence of pretext may take many forms, including 24 evidence that similarly situated employees were treated differently. Id. at 694-95. Additionally, 25 proof of temporal proximity between the protected activity and the adverse employment action 26 may both support the causal link in the prima facie case and be evidence of pretext. Id. at 694; see 27 also Dawson v. Entek Int’l, 630 F.3d 928, 937 (9th Cir. 2011) (“In some cases, temporal 28 Page 4 of 6 1 proximity can by itself constitute sufficient circumstantial evidence of retaliation for purposes of 2 both the prima facie case and the showing of pretext.”). Wilson has presented evidence of protected activity because she filed an Equal 3 4 Employment Opportunity Commission (EEOC) complaint of race discrimination against her prior 5 employer, Greater Las Vegas Association of Realtors (GLVAR), in May 2013, and she filed a 6 lawsuit against GLVAR on March 10, 2014. Wilson v. Greater Las Vegas Ass’n of Realtors, 7 2:14-cv-00362-APG-NJK, ECF Nos. 1, 1-1. She suffered an adverse employment action when 8 she was fired from NAHAC on September 30, 2014. ECF No. 78-6. Wilson also has presented evidence of a causal connection between her protected activity 9 10 and her termination. Kolleen Kelley was a member of GLVAR, was a member of the board of 11 GLVAR, and was aware of the lawsuit Wilson filed against GLVAR. ECF No. 78-4 at 9-10. 12 Kelley also was a board member of NAHAC when Wilson was hired in January 2014. ECF Nos. 13 72-4 at 3; 72-6; 78-4 at 14. In March or April 2014, Kelley opposed the NAHAC board’s proposal to grant Wilson 14 15 authority to co-sign checks with Lopez Lasater for amounts greater than $5,000. ECF Nos. 78-2 16 at 17-18; 78-21 at 21-22. Kelley was not opposed to the controller having this power; rather, her 17 concern was specifically directed at Wilson based on past experience at GLVAR. ECF Nos. 78-2 18 at 18; 78-21 at 21-22. The board nevertheless approved Wilson for that authority. ECF No.78-2 19 at 18. 20 Kelley became the interim chair of the NAHAC board in July 2014. ECF Nos. 72-4 at 3; 21 78-4 at 32; 78-15. She became the chair in September 2014. ECF Nos. 72-4 at 3; 78-14. Just a 22 few weeks later, Wilson was terminated. ECF Nos. 78-4 at 32; 78-6. Although the protected 23 activity (filing the EEOC complaint in May 2013 and related lawsuit in March 2014) occurred 24 many months before her termination at NAHAC, Wilson was terminated within weeks of Kelley 25 becoming chair of the board at NAHAC. A reasonable jury could find that Kelley took retaliatory 26 action soon after she was able to do so. This temporal proximity raises an inference of causation. 27 28 Page 5 of 6 1 As discussed previously, NAHAC has offered a legitimate, non-retaliatory explanation for 2 Wilson’s termination. But Wilson has presented evidence that this explanation is pretextual. 3 Wilson was terminated for conduct that did not result in the termination of other employees who 4 had not engaged in protected activity. Lopez Lasater did not think Wilson should have been 5 terminated for the alleged policy violations. 6 Additionally, Kelley denies she made the decision to terminate Wilson and states that the 7 decision was made by Lopez Lasater. ECF No. 78-4 at 31-32. However, Lopez Lasater states that 8 she did not think Wilson should have been terminated and that she did not make the decision to 9 fire Wilson. ECF No. 78-2 at 21-22, 76-77. Instead, Lopez Lasater contends that she was directed 10 to fire Wilson during a phone call with Kelley and NAHAC’s counsel, Stefanie Sharp. ECF No. 11 78-2 at 21-23, 28-29, 67; see also ECF No. 78-19 (board member Anuja Dass testifying that 12 Lopez Lasater was not the person who decided to terminate Wilson). A reasonable jury could 13 find Kelley made the termination decision and her effort to distance herself from that decision is 14 evidence of pretext. Further, Wilson has presented evidence that Kelley previously attempted to 15 undermine Wilson’s performance when she objected to Wilson being given co-signing authority 16 on checks over $5,000. Kelley expressed a concern about Wilson based on their prior history at 17 GLVAR. ECF No. 78-2 at 43. Finally, the temporal proximity between when Kelley became 18 chair of the board with the power to terminate Wilson and Wilson’s termination raises an 19 inference of retaliatory intent. I therefore deny NAHAC’s motion for summary judgment on the 20 retaliation claim. 21 II. CONCLUSION 22 23 24 IT IS THEREFORE ORDERED that defendant Nevada Affordable Housing Assistance Corporation’s motion for summary judgment (ECF No. 71) is DENIED. DATED this 30th day of March, 2017. 25 26 27 ANDREW P. GORDON UNITED STATES DISTRICT JUDGE 28 Page 6 of 6

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