United States District Court, D. Nevada
Terris R. Jones, Sr., Plaintiff,
Las Vegas Valley Water District, et al., Defendants.
ORDER GRANTING THE
LAS VEGAS WATER DISTRICT'S MOTION FOR SUMMARY JUDGMENT [DOC. 66] AND DENYING
TERRIS R. JONES' MOTION FOR JUDGMENT ON THE PLEADINGS [DOC. 70], MOTION FOR
SUMMARY JUDGMENT [DOC. 79] AND MOTIONS EX PARTE COMMUNICATION PURSUANT TO LR
7-6(B) [DOC. 92)
JENNIFER A. DORSEY, District Judge.
Pro se Plaintiff Terris Jones has been employed as a security officer at the Las Vegas Valley Water District since 2007. He alleges a co-worker "discriminated against [him] and intentionally inflicted emotional distress on [him] by using the N-word' on multiple occasions to indicate his superiority over [his] race, African American." Doc. 25 at 10. He further alleges that a supervisor retaliated against him for filing an EEOC complaint and discriminated against him behind closed doors and in his year-end employment evaluation and by falsely accusing him of reckless driving, while a Caucasian counterpart went unpunished for another accident. Id. at 11-13. Jones seeks $100 million in damages. Doc. 68 at 3.
This is one of three lawsuits that Jones has filed in this courthouse against his employer and co-workers. See also 2:11-cv-435-KJD-PAL, 2:12-cv-282-KJD-PAL. The other two were resolved in favor of the District on summary judgment and both of those dispositions were affirmed by the Ninth Circuit; the 2011 action was based on the very same racial-discrimination allegations offered here. Although Jones originally commenced this action against the District and several individual defendants, all claims except for Jones's three Title VII causes of action against the Water District for hostile work environment, racial discrimination, and retaliation were dismissed in July 2012. Doc. 51.
The District now moves this Court for summary judgment on the final three claims remaining against it, Doc. 66,  and Jones has three pending motions of his own: a Motion for Judgment on the Pleadings, Doc. 70; a Motion for Summary Judgment, Doc. 79; and a document entitled "Motion Ex Parte Communication pursuant to LR 7-6(b)." Doc. 92. Jones's filings represent his second motion for judgment on the pleadings, third summary judgment motion, and fifth request for ex parte communication with the Court in this case. Having thoroughly evaluated the parties' submissions, the Court finds these motions appropriate for disposition without oral argument, concludes that summary judgment in favor of the District is appropriate, and denies Jones's pending motions based on the reasons below.
A. The Water District's Motion for Summary Judgment
The Water District seeks summary judgment in its favor on Jones's three remaining claims for Title VII harassment/hostile work environment, retaliation, and racial discrimination (Counts 7, 8, 9). It contends that Jones cannot establish a prima facie case of racial discrimination because discovery has failed to reveal any adverse employment action against him on account of his race, that the District acted with discriminatory intent, or that Jones suffered damage. Doc. 66 at 10-13. It further argues that Jones's racial harassment/hostile work environment claim fails because the alleged racial and hostile statements were, at best, non-actionable stray remarks for which the District is not liable. Id. at 13-15. And the absence of evidence of any adverse employment action also prevents Jones from proving his retaliation claim. Id. at 15. In support of this motion, the District offers a series of business records that are properly authenticated by the affidavit of Patricia Maxwell. Doc. 66-3.
As the movant, the District bears the initial burden of establishing the absence of a genuine issue of material fact by specifically identifying portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Rule 56(c)); see also Rosenbaum v. Washoe County, 663 F.3d 1071, 1075 (9th Cir. 2011) (citing Celotex, 477 U.S. at 322). The burden then shifts to Jones to set forth specific facts demonstrating a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Although all inferences must be draw in favor of Jones, he may not rest upon mere allegations; he must come forward with specific facts, by affidavit or other admissible evidentiary materials. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Bank of Amer. v. Orr, 285 F.3d 764, 774-75 (9th Cir. 2002). As a pro se litigant, Jones is not held to the same standard as an admitted attorney. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). A pro se litigant's filings are to be judged by their function, with liberal construction of "inartful pleading[s]." Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam). Nevertheless, a pro se litigant is not absolved from compliance with the Rules of Procedure simply because he has elected not to obtain representation. See Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986). Summary judgment must be entered even against a pro se "party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Jones's three-page opposition offers no evidence whatsoever to support his claims or refute the District's arguments and statement of undisputed facts. He summarily represents that "the exhibits or materials on file in this action which are Empirical and Habit Evidence' facts that defendants have not, nor can they refute ever, " show that "defendants' motion is not legally sound." Doc. 68 at 1. Jones attaches no exhibits to his opposition, and the only evidentiary item he references is his receipt of "Federal Notice of Right To Sue from the Department of Justice and the U.S. Equal Employment Opportunity Commission, which no one is able to refute!" Doc. 68 at 2.
Having evaluated the parties filings under these standards, the Court finds that the Water District has presented a properly supported motion for summary judgment as to all three counts and that Jones's sparse and unsubstantiated opposition fails to demonstrate a genuine issue of material fact to sustain his claims and survive summary judgment.
1. Racial Discrimination
Title VII makes it "an unlawful employment practice for an employer... to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of the individual's race." 42 U.S.C. § 2000e-2(a); see Brooks v. City of San Mateo, 229 F.3d 917, 928-29 (9th Cir. 2000); Chuang v. University of California, Davis, 225 F.3d 1115, 1124-26 (9th Cir. 2000). "As a general matter, the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer's motion for summary judgment." Chuang, 225 F.3d at 1123-24. Under the seminal case of McDonnell-Douglas Corp. v. Green, the employee must establish a prima facie case of discrimination. 411 U.S. 792, 802 (1973).
a. No adverse employment action
The District argues that Jones's racial discrimination claim fails because he has suffered no adverse employment action. Doc. 66 at 9-12. For Title VII purposes, only non-trivial employment actions that deter reasonable employees from complaining about Title VII violations constitute adverse employment actions. Brooks, 229 F.3d at 928. Adverse employment actions include termination, dissemination of negative employment reference, issuance of a negative performance review or a refusal to consider an employee for promotion, and they must be "final or lasting." Id. at 928-30 An action other than a termination or demotion requires some kind of meaningful change in work assignment. See Lyons v. England, 307 F.3d 1092, 1118 (9th Cir. 2002).
There is no evidence that Jones's employment changed in any way as a result of any of the alleged conduct in this case or that he has experienced any adverse action with respect to compensation, terms, conditions, or privileges of employment. Jones is still employed by the District, and he has suffered no change in pay and no shift in his job duties. Jones consistently received pay raises, Doc. 66-3 at 3, and he was never demoted. Id. Although he received an unfavorable review from his supervisor Tadlock in February 2010-an act that Jones claims was done in retaliation for his filing of his EEOC complaint-Jones successfully appealed that evaluation and "was given a pay increase, " and the review "did not negatively impact Jones'[s] work assignment, position, or pay." Id. Tadlock never supervised Jones after that. Id. at 4. Thus, there is absolutely zero evidence that Jones suffered an adverse employment action at all, particularly as a result of his race. The lack of any adverse employment ...