Van Pelt v. Skolnik et al

Filing 44

ORDER. IT IS ORDERED that 35 Defendants' Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. The motion is denied as to the Plaintiff's Title VII retaliation claim but is granted as to Plaintiff's Title VII gender discrimination claim and her First Amendment retaliation claim. Accordingly, the individual Defendants, sued in their individual capacities Howard Skolnik, Jack Palmer, James Benedetti, Rod Moore, Lawrence Booth, James Baca, Edgar Miller, and Elizabeth Walsh are dismissed from this action. At this stage, the sole remaining Defendant is the State of Nevada and the sole remaining claim is the Title VII claim. On or before October 19, 2012, the Plaintiff shall file proof that service has been made on the State of Nevada in compliance with § 41.031. Signed by Judge Howard D. McKibben on 9/21/2012. (Copies have been distributed pursuant to the NEF - HJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CARLA VAN PELT,

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Plaintiff,
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vs.
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HOWARD SKOLNIK, JACK PALMER,
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JAMES BENEDETTI, ROD MOORE,
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LAWRENCE BOOTH, JAMES BACA, EDGAR )
MILLER, ELIZABETH WALSH, and THE )
STATE OF NEVADA EX REL ITS
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DEPARTMENT OF CORRECTIONS,
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Defendants.
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_________________________________ )

3:11-cv-00061-HDM-VPC
ORDER

Before the court is the defendants’ motion for summary

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judgment (#35).

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replied (#43).

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Plaintiff has opposed (#38), and defendants have

Defendants are Nevada Department of Corrections (“NDOC”)

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employees and the State of Nevada.

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(“plaintiff”) is a former NDOC employee.

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stipulation, plaintiff filed a second amended complaint asserting:

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(1) First Amendment retaliation under 42 U.S.C. § 1983; (2) Title

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VII retaliation; and (3) Title VII gender discrimination.

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Defendants now seek summary judgment on plaintiff’s claims.
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Plaintiff Carla Van Pelt
Pursuant to the parties’

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Facts1

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From 1989 until 1997, and again from 2000 until her

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termination in November 2010, plaintiff worked for NDOC at the

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Northern Nevada Correctional Center (“NNCC”).

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termination, she was a program officer in OASIS, a drug and alcohol

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addiction program for inmates.

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29).2

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Associate Warden of Programs James Baca (“Baca”), acting Associate

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Warden of Programs Lisa Walsh (“Walsh”), and OASIS site supervisor

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At the time of her

(See Def. Mot. Summ. J. Ex. A at 3,

At various times, her supervisors included defendants former

Ed Miller (“Miller”).

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Plaintiff’s complaint focuses primarily on events that took

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place between December 2009 and May 2010, when she was placed on

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administrative leave before eventually being terminated.

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asserts that she suffered several adverse employment actions,

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including termination, for engaging in protected activities, and

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that she was subjected to gender discrimination.

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plaintiff’s claims and assert that she was terminated for

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falsifying log books and time sheets.

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forth in a light most favorable to the plaintiff, appear from the

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record.

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She

Defendants deny

The following facts, set

On December 10, 2009, plaintiff testified at an NDOC

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Defendants assert broadly that plaintiff has failed to authenticate
her exhibits. The court considers this argument only where defendants have
raised a specific objection. Defendants make just one specific objection,
to plaintiff’s exhibit #8, which plaintiff claims is a notice of
investigation that she received on April 1, 2010.
Exhibit 8 is not
authenticated and does not even appear to be a notice of investigation. The
court therefore finds defendants’ objection well taken and will not consider
plaintiff’s exhibit 8.
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All page citations to defendants’ exhibits are to the Bates-stamped
number at the bottom of the page.

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employee’s administrative disciplinary hearing pursuant to

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subpoena.

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that the actions for which the employee was facing discipline were

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actions plaintiff told her to take, and that she believed the

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proposed discipline to be excessive.

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also testified

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(Def. Mot. Summ. J. Ex. A at 41).

(Id.)

Plaintiff testified

Plaintiff claims she

that I was like the little warden of the [OASIS] unit; I
did everything that the warden does in that particular
unit. And I told them I did all the budgeting, I did the
making sure maintenance stuff was done, the hiring, the
firing, the personnel stuff, the purchasing. It was its
own little prison within the prison.

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(Pl. Dep. 30:8-19).3
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On December 18, 2009, defendant Warden James Benedetti
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(“Benedetti”) emailed NNCC staff to notify them that all employees
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were required to sign in at the gatehouse when arriving to work.
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(Def. Mot. Summ. J. Ex. A at 24).

Although plaintiff denies

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getting any such email or notification, she was aware that she was
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required to sign in at the gatehouse.

(Pl. Dep. 56-57).

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On December 30, 2009, plaintiff hired a female substance abuse
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counselor for the OASIS program.

(Pl. Opp’n Ex. 7).

On January 4,

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2010, plaintiff claims that Miller told her that she had to unhire
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the new employee, stating he didn’t want another “f---ing female”
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in the unit because they were too much trouble.

Plaintiff claims

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that although she reported this to two supervisors and a personnel
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tech, nothing was done.

(Id.)

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On January 22, 2010, Baca conducted a staff meeting during
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which plaintiff was stripped of any supervisory duties she had – or
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Parts of plaintiff’s deposition are located in Exhibit F to
defendants’ motion for summary judgment and other parts are located in
Exhibit 2 to plaintiff’s opposition.

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thought she had – in the OASIS program, Miller was designated as

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plaintiff’s supervisor, and all employees, including plaintiff,

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were directed to fill out and submit leave slips and obtain prior

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approval for all leave.

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Ex. 3).

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working shifts from 8:00 a.m. to 4:00 or 8:00 am. to 5:00 p.m.

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(Id.).

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director of the OASIS unit north.

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30).

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(Def. Mot. Summ. J. Ex. A at 42; Pl. Opp’n

Baca further instructed that all employees would start

Plaintiff claims that before this meeting she was acting
(See Def. Mot. Summ. J. Ex. A at

After the January 22, 2010, meeting, plaintiff allegedly told

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another OASIS employee that she would not help Miller learn his new

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supervisory job.

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(See Pl. Opp’n Ex. 3).

On January 30, 2010, plaintiff filed a NERC/EEOC complaint

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(hereinafter “EEOC complaint”).

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claims that the complaint alleged “disparate treatment” by

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“coworkers and supervisors, including transmission of

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pornography.”4

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(Second Am. Compl. 1).

Plaintiff

(Pl. Opp’n 2).

On February 11, 2010, Baca issued plaintiff a “Letter of

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Instruction for Insubordination,” for, in part, plaintiff’s

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statement after the January 22, 2010, meeting.5

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After receiving the letter of instruction, and at that meeting,

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plaintiff informed Baca, Walsh, and Miller about her EEOC

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complaint.

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(Pl. Opp’n Ex. 3).

(Pl. Opp’n Ex. 7).

On February 15, 2010, plaintiff claims she submitted an

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It is unknown exactly what plaintiff alleged in this complaint as it
is not part of the record. Defendants do not dispute that the complaint was
filed or plaintiff’s characterization of its contents.
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It appears that it also alleged other instances of insubordination,
but plaintiff has not attached all pages of the document.

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incident report alleging that Miller had given favorable treatment

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to an inmate.

(Pl. Opp’n Ex. 7).

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On March 1, 2010, plaintiff signed an acknowledgment prepared

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by Miller that signing in and out of gatehouse and at the unit was

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“important.”

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(Def. Mot. Summ. J. Ex. A at 21).

On March 2, 2010, plaintiff informed NDOC Director Howard

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Skolnik (“Skolnik”) of her EEOC complaint.

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she was leaving, plaintiff heard Skolnik “say that he was going to

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do what he could to get rid of me.”

(Pl. Opp’n Ex. 7).

(Pl. Dep. 72).

As

Afterwards,

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plaintiff claims Baca “screamed” at her for talking directly to

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Skolnik.6

(Pl. Dep. 35-36).

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On March 3, 2010, plaintiff allegedly told Miller that

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defendant Larry Booth (“Booth”), a coworker in the OASIS program,

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was creating a hostile work environment and needed his “ass

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kicked.”

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Plaintiff denies this, insisting that instead she said that Booth

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“‘need[ed] to come off his high horse’ because she was tired of the

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comments he was making and his total disregard for anything she had

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to say.”

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OASIS employee wrote an incident report about the unprofessional

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and hostile way he believed Booth and Miller were treating

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plaintiff.

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that Booth and Miller were trying to isolate and ignore plaintiff

(Def. Mot. Summ. J. Ex. A at 77; Pl. Opp’n Ex. 5).

(Def. Mot. Summ. J. Ex. A at 36).

(Pl. Opp’n Ex. 4).

That same date, an

In particular, the employee noted

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Later that day, plaintiff apparently received a written reprimand
issued by Baca and approved by Benedetti.
(Pl. Opp’n Ex.7; id. Ex. 11
(Benedetti Dep. 10))). According to plaintiff, the letter scolded her for
talking directly to Skolnik and for writing the incident report about
Miller.
(Pl. Opp’n Ex. 7).
It also appears the letter charged
insubordination for plaintiff telling two correctional officers that they
should watch their backs when Miller was around. (Id. Ex. 11 (Benedetti
Dep. 10)).

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and that they showed visible disregard for her opinions during

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staff meetings.

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(Id.)

On March 11, 2010, plaintiff left work at 2 p.m. to pick up

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her car and did not return for the rest of the day.

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Summ. J. Ex. A 76).

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directly that she was leaving, although she was required to do so.

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On March 12, 2010, plaintiff again left work in the early

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afternoon, telling another NNCC employee that she had hurt her

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back.

(Id. at 75).

(Def. Mot.

She did not tell any of her supervisors

On March 15, 2010, plaintiff arrived late to

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work, saying she had forgotten to change her clock for daylight

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savings time.

(Id. at 76).

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At some point, an internal investigation into allegations that

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plaintiff had been discourteous, been insubordinate, made false and

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misleading statements, neglected her duties, and engaged in

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unbecoming conduct began.

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The exact date the investigation was initiated is unclear from the

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record, but based on the timing of the allegations, which included

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instances as late as March 12, 2010, and the timing of the

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interviews, the first of which apparently took place on March 17,

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2010, it may be inferred the investigation began sometime around

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those two dates.

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(See Def. Mot. Summ. J. Ex. A at 25).

(See id. at 26, 29).

On March 15, 2010, plaintiff filed an incident report stating

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that during an OASIS staff meeting she had complained to Miller and

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Booth about the hostile work environment, including their excluding

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her from meetings and decisions about the program.

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plaintiff, Miller and Booth began yelling at her and denying her

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allegations.

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occurring for the past six weeks and was so bad even the inmates

According to

The report stated that the hostility had been

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noticed it.

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plaintiff met with Baca and Walsh about the problems she was having

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with Miller and Booth.

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Baca said “there may be something to what you’re saying.”

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The following day, Baca was transferred to another institution, and

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Walsh became acting associate warden of programs.

(Pl. Opp’n Ex. 6).

Around this time, it appears,

(Pl. Dep. 38).

According to plaintiff,
(Id.)

(Pl. Dep. 38).

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Toward the end of March 2010, a number of events occurred.

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First, plaintiff complained to Skolnik of retaliatory

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harassment by Miller, Booth, Walsh, and Baca following the filing
of her EEOC complaint.

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(Pl. Opp’n Ex. 7).

Second, Walsh advised plaintiff that she was chronically late

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and gave her the option to change her schedule.

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responded that as an exempt employee she did not have to work 40

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hours a week, and Walsh asked for proof of exempt status.

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plaintiff promised to provide such proof, there is no indication in

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the record that she ever did.7

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79).

Plaintiff

Although

(Def. Mot. Summ. J. Ex. A at 78-

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Third, plaintiff showed Walsh evidence of the alleged

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harassment underlying her EEOC complaint, which was a video that

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Booth had sent to her “sometime ago” of a man’s buttocks and

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people’s reactions to it.

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According to Booth, he had sent the video a year and a half

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earlier, he had sent it to everybody and not just plaintiff, and

(Def. Mot. Summ. J. Ex. A at 42).

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In fact, an NDOC personnel officer avers that no record exists
showing plaintiff was an exempt employee, and that the position of OASIS
program director was not an exempt position. (Def. Mot. Summ. J. Ex. E at
178). Plaintiff claims that she received notice from personnel that her
position was exempt because she was the program’s acting director in the
north, but she provides no evidence to support this claim. (Pl. Dep. 17:1224).

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plaintiff had not complained of it at the time.

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Dep. 24)).

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(Def. Reply (Booth

Finally, after showing Walsh the alleged evidence of

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harassment on or about March 31, 2010, plaintiff claims Walsh told

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her three times that she needed to withdraw her EEOC complaint or

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“somebody, looking directly at me, is going to get fired.”

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Dep. 35:16-24; see also Def. Mot. Summ. J. Ex. A at 38).

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Immediately after this, as plaintiff was leaving Walsh’s office,

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plaintiff heard Walsh pick up the phone, call investigator Rod

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Moore (“Moore”), and tell him, “It’s on.”8

(Pl.

(Pl. Dep. 35:21-24).

On April 5, 2010, plaintiff began a new schedule, working 8:30
a.m. to 4:30 p.m.

(Def. Mot. Summ. J. Ex. A at 117).

On May 12, 2010, plaintiff was placed on administrative leave

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following allegations that she had taken her unit’s logbook into

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her office to “doctor” it – that is, to falsify her hours worked in

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order to cover up that she was arriving late and leaving early.

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(Def. Mot. Summ. J. Ex. A at 11, 14, 22).

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doctoring the log book and claimed she was doing her “statistics

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... like always.”

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Plaintiff denied

(Pl. Dep. 47-48).

On June 16, 2010, Moore issued a report of investigation into

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the following allegations: (1) that on several occasions in March

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and April 2010 plaintiff arrived late to work, left early, and

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falsified logbooks and time sheets to show that she had worked

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Plaintiff claims that the day after this last conversation, she
received a notice of investigation, but the evidence she attaches to prove
such – Exhibit 8 – is unauthenticated and does not appear to be a notice of
investigation. See supra n.1.
At any rate, it is clear from the record
that plaintiff was already under at least one investigation by the time of
her conversation with Walsh.

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longer hours than she actually had;9 and (2) that plaintiff had

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doctored the unit logbook.

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On July 16, 2010, Moore issued a second report of investigation

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into the following allegations: (1) that from October 2009 to March

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2010 plaintiff chronically arrived for work late, left early, and

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concealed that fact on her timesheets; (2) that plaintiff

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repeatedly failed to sign into the gatehouse and unit logbooks; (3)

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that in summer 2009 plaintiff threw a chair during a meeting with

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Miller, Booth, and others when the issue of plaintiff’s performance

(Def. Mot. Summ. J. Ex. A at 11, 14).

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came up; (4) that plaintiff improperly claimed to be an exempt

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employee who could work from home; (5) that plaintiff misused the

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computer by visiting numerous sites not related to her job duties;

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and (6) that plaintiff told Miller that Booth needed his “ass

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kicked.”

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(Def. Mot. Summ. J. Ex. A at 26-31).

On October 14, 2010, plaintiff was served with a specificity

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of charges, which contained many of the factual allegations

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investigated by Moore.

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predisciplinary hearing took place on October 26, 2010, at which

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plaintiff did not appear.

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the hearing, plaintiff was terminated effective November 1, 2010.

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(Id.)

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(Def. Mot. Summ. J. Ex. A at 2, 7).

(Def. Mot. Summ. J. Ex. A at 2).

A

After

On March 2, 2011, plaintiff received a right-to-sue letter

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from the EEOC.

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Standard

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“The court shall grant summary judgment if the movant shows

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The investigation report specifies four such times: (1) March 24,
2010; (2) March 31, 2010; (3) April 23, 2010; (4) April 20, 2010, along with
a number of other unspecified times. (Def. Mot. Summ. J. Ex. A at 15).

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that there is no genuine issue as to any material fact and the

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movant is entitled to judgment as a matter of law.”

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P. 56(a).

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issue of material fact lies with the moving party, and for this

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purpose, the material lodged by the moving party must be viewed in

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the light most favorable to the nonmoving party.

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Kress & Co., 398 U.S. 144, 157 (1970); Martinez v. City of Los

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Angeles, 141 F.3d 1373, 1378 (9th Cir. 1998).

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fact is one that affects the outcome of the litigation and requires

Fed. R. Civ.

The burden of demonstrating the absence of a genuine

Adickes v. S.H.

A material issue of

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a trial to resolve the differing versions of the truth.

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Sheet Metal Workers Int’l Ass’n, 804 F.2d 1472, 1483 (9th Cir.

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1986); S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir.

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1982).

Lynn v.

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Once the moving party presents evidence that would call for

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judgment as a matter of law at trial if left uncontroverted, the

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respondent must show by specific facts the existence of a genuine

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issue for trial.

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250 (1986).

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sufficient evidence favoring the nonmoving party for a jury to

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return a verdict for that party.

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colorable, or is not significantly probative, summary judgment may

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be granted.”

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of evidence will not do, for a jury is permitted to draw only those

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inferences of which the evidence is reasonably susceptible; it may

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not resort to speculation.”

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F.2d 946, 952 (9th Cir. 1978); see also Daubert v. Merrell Dow

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Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993) (“[I]n the event

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the trial court concludes that the scintilla of evidence presented

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

“[T]here is no issue for trial unless there is

If the evidence is merely

Id. at 249-50 (citations omitted).

“A mere scintilla

British Airways Bd. v. Boeing Co., 585

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supporting a position is insufficient to allow a reasonable juror

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to conclude that the position more likely than not is true, the

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court remains free . . . to grant summary judgment.”).

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“[i]f the factual context makes the non-moving party’s claim of a

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disputed fact implausible, then that party must come forward with

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more persuasive evidence than otherwise would be necessary to show

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there is a genuine issue for trial.”

8

Stanewich, 142 F.3d 1145, 1149 (9th Cir. 1998) (citing Cal.

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Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818

Moreover,

Blue Ridge Ins. Co. v.

10

F.2d 1466, 1468 (9th Cir. 1987)).

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unsupported by factual data cannot defeat a motion for summary

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judgment.

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Conclusory allegations that are

Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

Finally, if the nonmoving party fails to present an adequate

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opposition to a summary judgment motion, the court need not search

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the entire record for evidence that demonstrates the existence of a

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genuine issue of fact.

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Dist., 237 F.3d 1026, 1029-31 (9th Cir. 2001) (holding that “the

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district court may determine whether there is a genuine issue of

19

fact, on summary judgment, based on the papers submitted on the

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motion and such other papers as may be on file and specifically

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referred to and facts therein set forth in the motion papers”).

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The district court need not “scour the record in search of a

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genuine issue of triable fact,” but rather must “rely on the

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nonmoving party to identify with reasonable particularity the

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evidence that precludes summary judgment.”

26

F.3d 1275, 1279 (9th Cir. 1996) (quoting Richards v. Combined Ins.

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Co., 55 F.3d 247, 251 (7th Cir.1995)).

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burden to respond is really an opportunity to assist the court in

See Carmen v. San Francisco Unified Sch.

11

Keenan v. Allan, 91

“[The nonmoving party’s]

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understanding the facts.

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discharge that burden–for example by remaining silent–its

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opportunity is waived and its case wagered.”

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Twp. Trustees, 980 F.2d 399, 405 (6th Cir. 1992).

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Analysis

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But if the nonmoving party fails to

Guarino v. Brookfield

Defendants moved for summary judgment on plaintiff’s claims,

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arguing: (1) plaintiff’s First Amendment retaliation claim fails

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because she has failed to show she spoke on a matter of public

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concern as a private citizen; (2) plaintiff’s gender discrimination

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claim fails because she has not alleged or shown any similarly

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situated employee was treated differently than she was; (3) res

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judicata on the basis of administrative decisions precludes

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plaintiff’s claims; and (4) several of the defendants were not

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personally involved.

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on the merits on plaintiff’s Title VII retaliation claim.

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I. First Amendment Retaliation

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Defendants did not move for summary judgment

To prove a violation under 42 U.S.C. § 1983, a plaintiff must

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establish that the defendants (1) acting under color of law (2)

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deprived plaintiff of the rights, privileges, or immunities secured

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by the Constitution or the laws of the United States.

21

United States, 781 F.2d 1334, 1338 (9th Cir. 1986).

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first claim for relief asserts First Amendment retaliation against

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the individual defendants.

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were acting under color of law.

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defendants deprived plaintiff of her First Amendment rights.

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Gibson v.
Plaintiff’s

There is no dispute that the defendants
The issue is thus whether

“It is well settled that the state may not abuse its position

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as employer to stifle ‘the First Amendment rights its employees

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would otherwise enjoy as citizens to comment on matters of public
12

1

interest.’”

2

First Amendment retaliation claims are analyzed through a

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sequential five-step test: (1) whether the plaintiff spoke on a

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matter of public concern; (2) whether the plaintiff spoke as a

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private citizen or public employee; (3) whether the plaintiff’s

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protected speech was a substantial or motivating factor in the

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adverse employment action; (4) whether the state had an adequate

8

justification for treating the employee differently from other

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members of the general public; and (5) whether the state would have

Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009).

10

taken the adverse employment action even absent the protected

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speech.

12

Id. at 1070.

“Speech involves a matter of public concern when it can fairly

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be considered to relate to ‘any matter of political, social, or

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other concern to the community.’” Eng, 552 F.3d at 1070.

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This inquiry is a question of law and is based on the “content,

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form, and context of a given statement, as revealed by the record

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as a whole.”

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was a matter of public concern.

19

Id.

Plaintiff bears the burden of showing her speech
Id.

The scope of the public concern element has been defined

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broadly.

21

(9th Cir. 2009).

22

information is needed or appropriate to enable the members of

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society to make informed decisions about the operation of their

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government merits the highest degree of first amendment

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protection.” Coszalter v. City of Salem, 320 F.3d 968, 973 (9th

26

Cir. 2003).

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grievances” that are “of no relevance to the public’s evaluation of

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the performance of governmental agencies” are not usually of public

Desrochers v. City of San Bernardino, 572 F.3d 703, 710
“Speech that concerns issues about which

On the other hand, “individual personnel disputes and

13

1

concern.

2

subject matter of a statement is only marginally related to issues

3

of public concern, the fact that it was made because of a grudge or

4

other private interest or to coworkers rather than to the press may

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lead the court to conclude that the statement does not

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substantially involve a matter of public concern.”

7

F.3d at 710.

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power struggles within the workplace.”

9

discrimination by public employees can be a matter of public

Eng, 552 F.3d at 1070.

“In a close case, when the

Desrochers, 572

“The same is true of speech that relates to internal

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concern.

11

Id.

Opposition to unlawful

925-26 (9th Cir. 2006).

12

See Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917,

Plaintiff must also show the speech was made in her capacity

13

as a private citizen and not as a public employee.

14

at 1071.

15

make or which were not the product of “performing the tasks the

16

employee was paid to perform” satisfy this requirement.

17

Public employees do not have First Amendment protection for

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statements made pursuant to their official duties.

19

Ceballos, 547 U.S. 410, 421 (2006).

20

Eng, 552 F.3d

Statements which the speaker “had no official duty” to

Id.

Garcetti v.

Plaintiff’s complaint asserts three instances of allegedly

21

protected speech: (1) her December 10, 2009, predisciplinary

22

hearing testimony; (2) her filing of the incident report alleging

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favorable inmate treatment by Miller; and (3) her filing of an EEOC

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complaint and the internal report of such.

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none of this speech was on a matter of public concern or done as a

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private citizen.

Defendants argue that

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A. Disciplinary Hearing Testimony

28

The record reflects that plaintiff’s testimony at the
14

1

predisciplinary hearing of another consisted of three statements:

2

(1) that plaintiff had directed the employee to engage in the

3

conduct for which she was being punished; (2) that plaintiff

4

thought the proposed discipline was excessive; and (3) that

5

plaintiff testified “that I was like the little warden of the unit;

6

I did everything that the warden does in that particular unit.

7

I told them I did all the budgeting, I did the making sure

8

maintenance stuff was done, the hiring, the firing, the personnel

9

stuff, the purchasing.

And

It was its own little prison within the

10

prison.”

11

related to plaintiff’s job duties (or perceived job duties).

12

Accordingly, in light of the speech’s context, content, and form,

13

the court concludes that as a matter of law plaintiff’s testimony

14

was not on a matter of public concern.

15

(Pl. Dep. 30:8-19).

All three statements directly

Further, plaintiff has raised no genuine issue of material

16

fact that as an NDOC employee she was required to testify at the

17

hearing pursuant to the subpoena.

18

T; id. Ex. F 191-92).

19

official duty to speak, this speech was not, as a matter of law,

20

made in her capacity as a private citizen.

(Def. Mot. Summ. J. Ex. D 172 ¶

Accordingly, because plaintiff was under an

21

B. Incident Report Regarding Favorable Treatment

22

The incident report has not been included in the record by

23

either party.

24

plaintiff’s statements therein spoke to a matter of public concern.

25

Even if they did, however, the report was not filed in plaintiff’s

26

capacity as a private citizen.

27

reports about alleged misconduct pursuant to NDOC regulations.

28

(See Def. Mot. Summ. J. Ex. C at 157; Ex. D at 172); see also

Accordingly, it is impossible to determine whether

Rather, she was required to file

15

1

Anthoine v. N. Cen. Counties Consortium, 605 F.3d 740, 749 (9th

2

Cir. 2010) (explaining that in Freitag v. Ayers, 468 F.3d 528 (9th

3

Cir. 2006) the court held that plaintiff’s report that inmates were

4

sexually harassing her made to officials in the chain of command

5

were made pursuant to her official duties because she was required

6

to report inmate misconduct).

7

support her claim with respect to this speech.

8

C. EEOC Complaint and Internal Report

9

Neither party has included plaintiff’s EEOC complaint as part

Thus, plaintiff has failed to

10

of the record.

11

the complaint or the internal report thereof involved a matter of

12

public concern and if so to what extent.

13

failed to support her claim in this regard.

14

Therefore the court is unable to determine whether

Thus, plaintiff has

The defendants are therefore entitled to judgment as a matter

15

of law on plaintiff’s First Amendment retaliation claim.

16

concluded, it is unnecessary for the court to address the

17

defendants’ arguments regarding personal participation.

18

II. Title VII Retaliation

19

Having so

Under Title VII, it is unlawful for an employer to

20

discriminate against an employee because the employee has opposed

21

an unlawful employment practice under Title VII.

22

2000e-3(a).

Title VII claims are analyzed under a burden-shifting

23

framework.

First, the plaintiff must establish a prima facie case

24

of discrimination.

25

802 (1973).

26

to articulate a legitimate nondiscriminatory reason for its

27

actions.

28

that the employer’s stated reasons are pretextual.

42 U.S.C. §

McDonnell-Douglas Corp. v. Green, 411 U.S. 792,

Then, the burden of production shifts to the employer

Id. at 802.

Once met, the plaintiff must offer evidence

16

Id. at 804.

1

“[S]ummary judgment is not appropriate if, based on the evidence in

2

the record, a reasonable jury could conclude by a preponderance of

3

the evidence that the defendant undertook the challenged employment

4

action because of the plaintiff’s” protected activity.

5

Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th

6

Cir. 2006).

See

7

A. Prima Facie Case

8

To establish a prima facie case of retaliation, the plaintiff

9

must show: (1) she engaged in a protected activity; (2) she

10

suffered an adverse employment action; and (3) a causal link exists

11

between the protected activity and the adverse action.

12

1034-35.

13

Id. at

“To show the requisite causal link, the plaintiff must present

14

evidence sufficient to raise the inference that her protected

15

activity was the likely reason for the adverse action.”

16

Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982).

17

facie stage of a retaliation case, the casual link element is

18

construed broadly so that a plaintiff merely has to prove that the

19

protected activity and the negative employment action are not

20

completely unrelated.”

21

(9th Cir. 2007) (internal citation and quotations omitted).

22

Cohen v.

“At the prima

Poland v. Chertoff, 494 F.3d 1174, 1181 n.2

i. Protected Activity

23

Although the complaint is not part of the record, defendants

24

have not disputed that plaintiff filed an EEOC complaint alleging

25

“disparate treatment” by “coworkers and supervisors, including

26

transmission of pornography.”

27

plaintiff’s failure to include the EEOC complaint is fatal to her

28

First Amendment claim, which requires careful analysis of the

(Pl. Opp’n 2).

17

While the

1

speech itself and the context in which it is made, it is not fatal

2

with respect to her Title VII claim.

3

required to show is that she complained of activity that a

4

reasonable person would believe is unlawful under Title VII.

5

plaintiff has satisfied this requirement by the fact she filed a

6

Title VII EEOC complaint alleging disparate treatment and

7

transmission of pornography and that she received a right-to-sue

8

letter.

9

complaint and showed defendant Walsh the evidence she believed

All that the plaintiff is

The

What’s more, plaintiff told her supervisors of her

10

supported it.

11

plaintiff’s prima facie case.

12
13
14

ii. Adverse Employment Action
Plaintiff suffered an adverse employment action by being
terminated.

15
16

This is sufficient to meet this element of

iii. Causal Link
Plaintiff filed her EEOC complaint on January 30, 2010.

She

17

advised many of her superiors of the complaint on February 11,

18

2010, and advised NDOC Director Howard Skolnik specifically on

19

March 2, 2010.

20

12, 2010, after being accused of falsifying logbooks.

21

plaintiff was not ultimately terminated until November 2010, the

22

investigations leading to her termination began within a few

23

months, if not weeks, of many defendants learning of her Title VII

24

claim.10 Construing this element broadly at the prima facie stage,

Plaintiff was placed on administrative leave on May
Although

25
26
27
28

10

While defendants claim that the investigations had already begun by
this point, they provide no evidence to support their assertion. Even if
that is true, however, the investigations clearly picked up steam after
defendants learned of the EEOC complaint, as the bulk of the specific
allegations of misconduct were for incidents that occurred in March, April,
and May 2010.

18

1

it cannot be said that plaintiff’s protected activity and her

2

eventual termination were completely unrelated.

3

therefore exists between plaintiff’s protected activity and her

4

termination.

5
6

A causal link

Plaintiff has thus established a prima facie case of
retaliation.

7

B. Legitimate Nondiscriminatory Reason

8

Because plaintiff has established a prima facie case, the

9

burden shifts to the state to provide a legitimate

10

nondiscriminatory reason for the adverse employment action.

11

record reflects plaintiff was terminated for allegedly falsifying

12

logbooks and timesheets over a substantial period of time, which is

13

a legitimate nondiscriminatory reason.

14

C. Pretext

15

The

Pretext may be shown either indirectly, by showing the

16

employer’s proffered explanation in unworthy of credence because it

17

is internally inconsistent or otherwise not believable, or

18

directly, by showing that unlawful discrimination more likely

19

motivated the employer.

20

Cir. 2002).

21

substantial.

Lyons v. England, 307 F.3d 1092, 1113 (9th

Circumstantial evidence must be specific and
Id.

22

“That an employer’s actions were caused by an employee’s

23

engagement in protected activities may be inferred from proximity

24

in time between the protected action and the allegedly retaliatory

25

employment decision.”

26

Dist., 323 F.3d 1185, 1197 (9th Cir. 2003) (internal citations and

27

quotations omitted).

28

sufficient circumstantial evidence of retaliation in some cases.

Raad v. Fairbanks N. Star Borough Sch.

Temporal proximity can by itself be

19

1

Bell v. Clackamas County, 341 F.3d 858, 865 (9th Cir. 2003).

2

As discussed, there is at least a question of fact as to the

3

temporal proximity between plaintiff’s protected activity and the

4

alleged adverse employment actions, and they are potentially very

5

close in time.

6

alleged the following statements by superiors: (1) Skolnik’s

7

statement that he was going to do whatever he could to get rid of

8

plaintiff; and (2) Walsh’s statement that plaintiff had to drop her

9

claim or “someone was going to get fired.”

In addition to that, however, plaintiff has also

These statements

10

suggest a retaliatory animus by Walsh and Skolnik, who were both

11

involved in plaintiff’s termination.

12

proximity, genuine issue of material fact exists as to whether

13

plaintiff was terminated for legitimate nondiscriminatory reasons

14

or whether she was terminated for engaging in protected activity.

15

Defendants’ motion for summary judgment on plaintiff’s Title VII

16

retaliation claim must therefore be denied.

17

Combined with the temporal

Plaintiff has not sued the individual defendants in their

18

official capacities, only in their individual capacities.

19

Sec. Am. Compl. ¶ 2).

20

in their individual capacities for violating Title VII.

21

Washington County, 88 F.3d 804, 808 (9th Cir. 1996).

22

plaintiff’s Title VII claim may only proceed against her employer,

23

the State of Nevada.

24

(See Pl.

Individual defendants cannot be held liable
Ortez v.

Accordingly,

In their reply, the defendants argue for the first time that

25

the state cannot be a party to this case because plaintiff has not

26

provided proof that it served NDOC’s director, as required by

27

statute.

28

consider an issue raised for the first time in a defendant’s reply.

See Nev. Rev. Stat. § 41.031.

20

The court does not

1

See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The

2

district court need not consider arguments raised for the first

3

time in a reply brief.”).

4

on whether plaintiff served the State of Nevada in compliance with

5

§ 41.031, the plaintiff shall, on or before October 19, 2012, file

6

proof that service has been made in compliance with § 41.031.11

7

III. Title VII Gender Discrimination

8
9

However, because the record is unclear

Under Title VII, it is an unlawful employment practice for an
employer to discriminate against any individual because of his or

10

her sex.

11

under the burden-shifting framework outlined above.

12

42 U.S.C. § 2000e-2(a)(1).

This claim is also analyzed

The plaintiff’s prima facie case of disparate treatment

13

requires her to show that: (1) she is a member of a protected

14

class; (2) she was qualified for her position; (3) she suffered an

15

adverse employment action; and (4) similarly situated individuals

16

outside her protected class were treated more favorably.

17

v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th Cir.

18

2004).

19

Fonseca

Defendant argues that plaintiff has failed to identify any

20

similarly situated individual who was treated more favorably,

21

defining similarly situated as “any individual or group who was

22

investigated and charged with falsification of log books and time

23

sheets and who reported alleged improper use of pornography, and

24
25
26
27
28

11

The court notes that while § 41.031 relates to the state’s waiver
of sovereign immunity, “the manner and timing of serving process are
generally nonjurisdictional matters of procedure that do not condition the
waiver of sovereign immunity.” Quality Loan Serv. Corp. v. 24702 Pallas
Way, Mission Viejo, CA, 635 F.3d 1128, 1133 n. 5 (9th Cir. 2011) (internal
alterations omitted) (citing Henderson v. United States, 517 U.S. 654, 656
(1996)).

21

1

was then terminated.”

2

definition is far too narrow, plaintiff has failed to identify

3

anyone similarly situated even in a broader sense with enough

4

specificity to survive summary judgment.

5

(Def. Mot. Summ. J. 8).

While this

In her deposition plaintiff identified Miller and Booth as

6

similarly situated males who had reported misconduct in the

7

workplace and had not properly completed log books who were not

8

investigated or terminated.

9

she provide any explanation as to what type of conduct Miller and

(Pl. Dep. 69:9-15).

But nowhere does

10

Booth reported or in what way Miller and Booth improperly completed

11

logbooks. Moreover, plaintiff was terminated for allegedly

12

repeatedly falsifying not only the logbooks but also her

13

timesheets, all after being counseled by her superiors to not do

14

so.

15

Booth were similarly situated to plaintiff in this way.

There is no indication anywhere in the record that Miller and

16

Plaintiff, in support of this claim, also argues that

17

defendants failed to act on her complaints of discrimination and

18

pornography, but she does not argue or identify another employee

19

who reported such claims to which the defendants did respond.

20

Plaintiff has therefore failed to carry her burden that similarly

21

situated individuals were treated more favorably than she was.

22

Anthoine, 605 F.3d at 753-54 (finding plaintiff failed to establish

23

his gender discrimination claim because he had not offered any

24

specific evidence on the circumstances of other employees allegedly

25

discriminated against because of their gender).

26

See

It is unclear whether plaintiff is also asserting sexual

27

harassment/hostile work environment claim.

28

however, she has also failed to support that claim.
22

To the extent she is,

1

A Title VII discrimination claim can be based on sexual

2

harassment amounting to a hostile work environment.

3

Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (“When the workplace is

4

permeated with discriminatory intimidation, ridicule, and insult,

5

that is sufficiently severe or pervasive to alter the conditions of

6

the victim’s employment and create an abusive working environment,

7

Title VII is violated.”) (internal quotation marks and citation

8

omitted); Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir.

9

2000) (noting that harassment committed or tolerated by an employer

See Harris v.

10

is discrimination).

11

just harassment because of an individual’s membership in a

12

protected group.

13

U.S. 75, 80 (1998).

14

Title VII does not prohibit all harassment,

Oncale v. Sundowner Offshore Servs., Inc., 523

To prevail on a hostile work environment claim, plaintiff must

15

show: (1) she was subjected to verbal or physical conduct because

16

of her sex; (2) the conduct was unwelcome; and (3) the conduct was

17

sufficiently severe or pervasive to alter the conditions of her

18

employment and create an abusive working environment.

19

Bank of Am., NA, 339 F.3d 792, 798 (9th Cir. 2003); see also Craig

20

v. M & O Agencies, Inc., 496 F.3d 1047, 1055 (9th Cir. 2007).

21

addition, the environment must also “both subjectively and

22

objectively be perceived as abusive.”

23

That is, the plaintiff must show that she perceived the environment

24

to be hostile, and that a reasonable person would find it to be so.

25

Equal Employment Opportunity Comm’n v. Prospect Airport Servs.,

26

Inc., 621 F.3d 991 (9th Cir. Sept. 3, 2010).

27
28

Mannatt v.

Brooks, 229 F.3d at 923.

Whether conduct is sufficiently objectively severe or
pervasive is determined “by looking at all the circumstances,
23

In

1

including the frequency of the discriminatory conduct; its

2

severity; whether it is physically threatening or humiliating, or a

3

mere offensive utterance; and whether it unreasonably interferes

4

with an employee’s work performance.”

5

Breeden, 532 U.S. 268, 270-71 (2001) (quoting Faragher v. City of

6

Boca Raton, 524 U.S. 775, 787-88 (1998)).

7

violated by simple teasing, off-hand comments, isolated incidents

8

(unless extremely serious), or “mere offensive utterance of an

9

epithet which engenders offensive feelings in an employee.”

Clark County Sch. Dist. v.

Title VII is not

10

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); Faragher

11

v. City of Boca Raton, 524 U.S. 775, 788 (1998).

12

showing of severity or seriousness of the harassing conduct varies

13

inversely with the pervasiveness or frequency of the conduct.”

14

Brooks, 229 F.3d at 926.

15

reasonable victim in assessing the objective portion.

16

“If hostility pervades a workplace, a plaintiff may establish a

17

violation of Title VII, even if such hostility was not directly

18

targeted at plaintiff.”

19

F.3d 1027, 1036 (9th Cir. 2005).

20

“[T]he required

The court assumes the perspective of the
Id. at 924.

Dominguez-Curry v. Nev. Transp. Dep’t, 424

The record reveals just two examples of potential harassment

21

linked to gender – the transmission of a video of a man’s buttocks

22

by Booth to plaintiff and everyone else in the workplace a

23

significant time before plaintiff complained about it, and Miller’s

24

comment that he didn’t want any more “f—ing females in the unit

25

because they were too much trouble.”

26

reflects, Booth’s forwarding of the video was an isolated incident

27

and thus insufficient to support a hostile work environment claim.

28

Miller’s comment, coupled with the assertion that he shut plaintiff
24

As far as the record

1

out and ignored plaintiff’s opinions, may suggest harassment based

2

on gender.

3

Miller’s conduct pervaded the working environment so as to be both

4

subjectively and objectively perceived as abusive.

5

plaintiff has failed to show sufficient evidence exists to support

6

her hostile work environment claim.

7

But there is a distinct lack of specific examples that

Without more,

As plaintiff has failed to establish a gender discrimination

8

claim under either a disparate impact or a hostile work environment

9

theory, the defendants’ motion for summary judgment on this claim

10

will be granted.

11

IV. Res Judicata

12

As plaintiff’s First Amendment claim fails on the merits, the

13

court need not decide it is barred by res judicata.

14

plaintiff’s Title VII claims, the unreviewed agency determination

15

is not entitled to preclusive effect.

16

Elliott, 478 U.S. 788, 795-96 (1986) (holding that unreviewed state

17

administrative proceedings do not have preclusive effect on Title

18

VII claim); see also Kremer v. Chem. Constr. Co., 456 U.S. 461, 470

19

n.7 (1982); Snow v. Nev. Dep’t of Prisons, 543 F. Supp. 752, 755

20

(D. Nev. 1982).

21

with respect to plaintiff’s Title VII claims is denied.

22

Conclusion

23

In terms of

See Univ. of Tenn. v.

Accordingly, defendants’ res judicata argument

In accordance with the foregoing, the defendants’ motion for

24

summary judgment is GRANTED IN PART and DENIED IN PART.

25

is denied as to the plaintiff’s Title VII retaliation claim but is

26

granted as to plaintiff’s Title VII gender discrimination claim and

27

her First Amendment retaliation claim.

28

defendants, sued in their individual capacities – Howard Skolnik,
25

The motion

Accordingly, the individual

1

Jack Palmer, James Benedetti, Rod Moore, Lawrence Booth, James

2

Baca, Edgar Miller, and Elizabeth Walsh – are dismissed from this

3

action.

4

of Nevada and the sole remaining claim is the Title VII claim.

5

or before October 19, 2012, the plaintiff shall file proof that

6

service has been made on the State of Nevada in compliance with §

7

41.031.

At this stage, the sole remaining defendant is the State

8

IT IS SO ORDERED.

9

DATED: This 21st day of September, 2012.

10
11

____________________________
UNITED STATES DISTRICT JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
26

On