Decker v. Barrick Goldstrike Mines, Inc.

Filing 44

ORDER granting 27 Motion for Summary Judgment. Signed by Judge Larry R. Hicks on 12/19/13. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LESTER DECKER,
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Plaintiff,
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v.
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BARRICK GOLDSTRIKE MINES, INC.,
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Defendant.
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3:12-cv-0287-LRH-WGC
ORDER

Before the court is defendant Barrick Goldstrike Mines, Inc.’s (“Barrick”) motion for

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summary judgment. Doc. #27.1 Plaintiff Lester Decker (“Decker”) filed an opposition (Doc. #33) to

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which Barrick replied (Doc. #38).

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I.

Facts and Background

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Defendant Barrick is a mining corporation that operates an open pit mine near Elko,

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Nevada. Plaintiff Decker, who identifies as Native American, is a former employee of Barrick and

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worked as an equipment operator and passenger bus driver since 1992.

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On the early morning on September 11, 2010, Decker caused an accident while transporting

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himself and his fellow shift crew out of the mine in one of Barrick’s passenger buses. At the time

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of the accident, there were only two roads in and out of the mining area: the “Suzy” road and the

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“12th West” road. At a pre-shift meeting the night before, on September 10, 2010, the shift

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supervisor advised all night shift crew, including Decker, that part of the 12th West road had been

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reworked and blocked off for “haul traffic.” See Doc. #27, Exhibit 9, Decker Depo., p.177:21-22.

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The next morning, at approximately 6.34 a.m., Decker logged into the bus’ monitoring

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system to begin the drive out of the mine.2 Prior to driving, Decker did not clean the bus

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windshield. See Id. at p.182:25-183:10. Decker then took the 12th West road out of the mine despite

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the prior night’s warning that part of the road had been reworked and closed. As he continued down

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the 12th West road, Decker was blinded by the rising sun. Id. at p.189:13-190:10. Decker did not

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stop, call for assistance, clean the windshield, or even use the bus’ sun visor. Instead, Decker

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continued driving up the 12th West road. Operating sun-blinded, and unable to see a turn up ahead,

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Decker drove the bus into a dig face barrier. Several of the employees Decker was transporting

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suffered injuries including concussions, a fractured nose, lacerations, contusions, and sprains. Many

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of the injured workers lost multiple days of work and one employee missed fifty-five (55) days of

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work as a result of injuries sustained in the accident. Decker also caused roughly $23,000 in

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property damage to Barrick equipment. Doc. #27, Exhibit 33.

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Barrick conducted an investigation into the accident which spanned several days. Barrick’s

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investigation determined that Decker was responsible for the accident and had violated several

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company policies for passenger bus operation.3 In particular, the Inthinc report generated during the

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investigation registered driving speeds in excess of the twenty-five mile per hour limit at the mine.

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All of Barrick’s vehicles and machine equipment are equipped with Inthinc, a monitoring system
which provides in-cab monitoring, GPS, speed recording, braking information, and other safety and recording
features.

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At the time of the accident, Barrick had in place a series of policies relating to the operation of
passenger buses entitled “Shift Change Procedures for Hot Change Buses.” Doc. #35, Exhibit 3. The policies
stated in pertinent part that (1) drivers will not operate any bus or vehicle with obstructed vision; (2) drivers
will clean windshields if vision is obstructed, before transporting personnel; (3) drivers will stop in a safe area
and clean windshields if vision becomes obstructed during operation; (4) drivers will not exceed posted speed
limits or drive faster than conditions permit; and (5) drivers will follow all traffic patterns correctly and will
obey all traffic control and warning signs. Id. The policies further provided that “[a]ny violation of the Standard
Operating Procedures may result in disciplinary action up to and including termination.” Id.

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Doc. #27, Exhibit 31. Likewise, Decker drafted a post-incident statement in which he admitted that

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he was unable to see in front of the bus while he was driving at the time of the accident. Doc. #27,

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Exhibit 32. As a consequence of the accident and these infractions, Barrick terminated Decker

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pursuant to its accelerated discipline policy.4

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Decker challenged his termination under Barrick’s appeal policy. Barrick’s appeal process

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permits an employee to challenge a termination to either a panel of his peers or directly to the

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general manager. Doc. #27, Exhibit 36. Decker chose a panel review. Pursuant to Barrick’s appeal

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policy “[t]he panel can recommend reversal or modification of the termination decision to the

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General Manager,” but the general manager makes the final decision regarding termination. Id.

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After reviewing the factual circumstances underlying the accident, the appeals panel recommended

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against Decker’s termination and passed their recommendation on to the general manager.

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Doc. #27, Exhibit 38. Randy Buffington (“Buffington”), Barrick’s general manager, considered the

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panel’s recommendation but ultimately upheld Decker’s termination. In a post-review letter,

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Buffington stated that Decker’s termination “was a result of [his] violation of the standards of

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conduct policy, ‘Safety violations that endanger life or limb, even if the action does not result in

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injury.’ Violation of our division’s standard operating procedures, ‘The assigned driver will not

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operate any bus or vehicle with obstructed vision.’ As well as a fundamental breach of trust.”

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Doc. #35, Exhibit 9.

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In response to his termination, Decker filed a charge of discrimination with the Equal

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Employment Opportunity Commission (“EEOC”) alleging discrimination based on his age, race,

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color, and national origin. After receiving a right to sue letter, Decker filed an initial complaint on

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Barrick also had in place at the time of the accident an accelerated discipline policy. See Doc. #35,
Exhibit 2. That policy stated in pertinent part that: “[D]epending upon personnel and situational factors, a first
time violation may result in further discipline up to and including termination of employment” for violations
of company policy including “[u]nauthorized crossing of guards, berms, barriers, barricades, or roadblocks”
and “[d]riving in excess of the speed limit or at speeds inappropriate for conditions in a company vehicle on
or off site.” Id.

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May 29, 2012. Doc. #1. Subsequently, on July 12, 2012, Decker filed an amended complaint

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alleging two causes of action: (1) age discrimination in violation of the ADEA; and (2) race, color,

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and national origin discrimination in violation of Title VII. Doc. #5. Thereafter, Barrick filed the

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present motion for summary judgment on both claims. Doc. #27.

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II.

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Legal Standard
Summary judgment is appropriate only 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 issue as to any material fact and that the moving party is entitled to judgment as a matter of

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law.” Fed.R.Civ.P. 56(c). In assessing a motion for summary judgment, the evidence, together with

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all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to

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the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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587 (1986); County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001).

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The moving party bears the burden of informing the court of the basis for its motion, along

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with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett,

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477 U.S. 317, 323 (1986). On those issues for which it bears the burden of proof, the moving party

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must make a showing that is “sufficient for the court to hold that no reasonable trier of fact could

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find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir.

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1986); see also Idema v. Dreamworks, Inc., 162 F.Supp.2d 1129, 1141 (C.D.Cal. 2001).

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To successfully rebut a motion for summary judgment, the non-moving party must point to

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facts supported by the record which demonstrate a genuine issue of material fact. Reese v. Jefferson

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Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir. 2000). A “material fact” is a fact “that might affect the

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outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

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(1986). Where reasonable minds could differ on the material facts at issue, summary judgment is

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not appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir. 1983). A dispute regarding a material

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fact is considered genuine “if the evidence is such that a reasonable jury could return a verdict for

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the nonmoving party.” Liberty Lobby, 477 U.S. at 248. The mere existence of a scintilla of
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evidence in support of the plaintiff’s position will be insufficient to establish a genuine dispute;

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there must be evidence on which the jury could reasonably find for the plaintiff. See id. at 252.

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III.

Discussion

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A. Age Discrimination

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The Age Discrimination in Employment Act (“ADEA”) makes it unlawful for an employer

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“to discharge any individual . . . because of such individual’s age.” 29 U.S.C. § 623(a)(1); accord

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N.R.S. § 613.330(1)(a). To prove a prima facie case of age discrimination, a plaintiff must show

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that: (1) he was at least forty years old; (2) he was performing his job satisfactorily; (3) he was

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discharged; and (4) he was replaced by a substantially younger employee with equal or inferior

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qualifications. Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008).
In its motion for summary judgment, Barrick concedes that Decker was over forty years of

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age and that his employment was terminated. See Doc. #27. However, Barrick contends that Decker

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has failed to provide any evidence that he was performing his job satisfactorily at the time of his

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termination, and thus, he fails to state a prima facie case of age discrimination. The court agrees.

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It is undisputed that at the time of his termination, Decked caused an accident which

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resulted in a range of injuries to several employees as well as over $23,000 in property damage. It is

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further undisputed that Decker violated multiple Barrick safety policies including, but not limited

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to: (1) driving with obstructed vision, (2) failing to clean the windshield before driving, and

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(3) exceeding the speed limit for the roads. Moreover, Decker continued to drive with obstructed

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vision even after confirming with the other passengers that they could also not see out of the bus.

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See Doc. #27, Exhibit 9, Decker Depo., p.193:24-194:4. Therefore, the court finds that Decker has

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failed to state a prima facie case of age discrimination as a matter of law. See e.g., Guerrero v.

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Beverly Hills Hotel, 1994 U.S. Dist. LEXIS 21757 (C.D. Cal. 1994) (holding that a single failure to

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follow established policy is sufficient to show that an employee was not meeting the employer’s

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legitimate expectations at the time of termination). Accordingly, the court shall grant Barrick’s

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motion as to Decker’s age discrimination claim.
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B. Race, Color, and National Origin Discrimination

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Title VII prohibits discrimination against an employee or an applicant for employment on

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the basis of race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2(a). To prevail on a

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Title VII discrimination claim, a plaintiff must establish a prima facie case of discrimination by

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presenting evidence that “gives rise to an inference of unlawful discrimination.” Cordova v. State

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Farm Ins. Co., 124 F.3d 1145, 1148 (9th Cir. 1997); see also McDonnell Douglas Corp. v. Green,

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411 U.S. 792, 802 (1973). A plaintiff can establish a prima facie case of discrimination through the

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burden shifting framework set forth in McDonnell Douglas. Metoyer v. Chassman, 504 F.3d 919,

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931 (9th Cir. 2007).

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Under the McDonnell Douglas framework, the plaintiff carries the initial burden of

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establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. To

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establish a prima facie case, the plaintiff must show that (1) he belongs to a protected class; (2) he

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was qualified for his position and was performing his job satisfactorily; (3) he suffered an adverse

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employment action; and (4) similarly situated individuals outside his protected class were treated

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more favorably. Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (citing Chuang v.

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Univ. of Cal. Davis, 225 F.3d 1115, 1126 (9th Cir. 2000)); see also, Bodett v. Coxcom, Inc., 366

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F.3d 726, 743 (9th Cir. 2004); Orr v. Univ. Med. Ctr., 51 Fed. Appx. 277 (“An implicit part of the

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“qualification” requirement is that the plaintiff was performing her job satisfactorily).

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If the plaintiff succeeds in establishing a prima facie case, the burden shifts to the defendant

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to articulate a legitimate, nondiscriminatory reason for its allegedly discriminatory conduct.

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McDonnell Douglas, 411 U.S. at 802. If the defendant provides such a justification, the burden

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shifts back to the plaintiff to show that the defendant’s justification is a mere pretext for

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discrimination. Id. at 804.

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In its motion, Barrick once again concedes that Decker, as a Native American, was a

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member of a protected class and that he was terminated from his employment. See Doc. #27.

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However, Barrick contends that Decker has failed to establish that he was performing his job
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satisfactorily at the time of his termination or that similarly situated non-Native Americans were

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treated more favorably than he was, after similar accidents. The court agrees.

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As addressed above, Decker has failed to establish that he was performing his job

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satisfactorily at the time of his termination. Further, Decker has failed to establish that non-Native

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American employees who engaged in similar conduct - causing accidents that involved injuries to

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other employees or significant property damage - were treated more favorably.

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Only two non-Native American employees, Mark Smith (“Smith”) and Rex Goff (“Goff”),

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have been identified as having similar accidents. The evidence before the court establishes that

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neither Smith nor Goff were treated more favorably that Decker. In fact, both employees had their

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employment end as a result of their accidents; Smith was forced to resign after running an empty

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passenger bus into a dozer and Goff was terminated after entering an active mine area and

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bypassing a barricade which resulted in his and another employee’s hospitalization. Thus, the

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evidence before the court establishes that non-Native American employees were not treated more

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favorably than Decker. Therefore the court finds that Decker has failed to establish a prima facie

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Title VII race, color, or national origin discrimination claim against Barrick. Accordingly, the court

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shall grant Barrick’s motion for summary judgment.

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IT IS THEREFORE ORDERED that defendant’s motion for summary judgment (Doc. #27)

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is GRANTED. The clerk of court shall enter JUDGMENT in this action in favor of defendant

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Barrick Goldstrike Mines, Inc. and against plaintiff Lester Decker.

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IT IS SO ORDERED.

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DATED this 19th day of December, 2013.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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