United States District Court, D. Nevada
JAMES C. MAHAN, District Judge.
Presently before the court is defendants' Alexander Dawson School, Alexander Dawson, Inc., Alexander Dawson School at Rainbow Mountain, LLC, and Alexander Dawson Foundation (collectively "defendants") motion for summary judgment. (Doc. # 41). Plaintiff Cheri Serlin has filed a response (doc. # 47) and defendants have replied (doc. # 53).
Plaintiff was formerly employed by the defendants as an elementary school teacher. At the time of filing, plaintiff had taught for a total of 18 years. In particular, she had taught fifth grade for four years at defendants' school when she was told her contract would not be renewed in March 2011. At the time of filing the complaint, plaintiff was 58 years old.
Plaintiff was diagnosed with breast cancer in 2009 while employed at Dawson. Following her diagnosis, she underwent 18 weeks of chemotherapy while continuing to work for defendants. Since 2009, plaintiff had been taking leave under the Family Medical Leave Act ("FMLA"). Her leave was renewed in February 2011, approximately one month before she was told her contract would not be renewed.
According to plaintiff, she was harassed and bullied for several months in 2010 by another faculty member, Julie Tognoni ("Tognoni"). Tognoni allegedly told plaintiff she could not "stand her" and that she was "incompetent." It is further alleged that Tognoni knew plaintiff is from Skokie, Illinois (which apparently maintains a large Jewish population), and that Tognoni stated plaintiff was from the "Bagel Belt, " implying that all Jewish people love bagels. Plaintiff maintains that this reference was derogatory, hurtful, discriminatory, and made her feel stressed.
Plaintiff filed a written complaint regarding Tognoni's comments and met with her superior, Russell Smith. She alleges that Smith responded angrily and told her that, because he could not find "Bagel Belt" on the internet, he did not believe it to be derogatory. She further alleges that Smith analogized being told one is from the "Bagel Belt" to being told one is from the "Bible Belt, " and that the comment was meant as a compliment. Finally, plaintiff alleges that during the meeting, Smith "raised his voice sternly and intimidated [plaintiff] by saying do you really want to make something out of this?'"
Plaintiff's breast cancer required her to undergo a bilateral double mastectomy and caused interstitial cystitis. She alleges she had to use the bathroom approximately 10-20 times per day as a result of her operations. Plaintiff further alleges that she was chastised by co-workers, in particular Tognoni and Cheri Garner ("Garner"), for her frequent bathroom use, for the amount of leave she took, and for her inability to perform various tasks such as decorating the hallway, preparing the assembly hall, and performing recess and car pool duties.
Defendants hired Angie Vetter ("Vetter") to replace plaintiff when her contract expired in March 2011. Vetter was 29 years old at the time and had been teaching for approximately 10 years. According to the defendants, plaintiff's contract was not renewed and Vetter was instead hired for two primary reasons. First, defendants were, at that time, contemplating a new requirement that all fifth grade teachers be capable of teaching math, and plaintiff either could not or was unwilling to teach it. Second, defendants cited "team problems" as an additional factor in their decision. These "team problems" referenced plaintiff's inability to get along with the other teachers, in particular Tognoni and Garner.
Based on these facts, plaintiff has filed the instant complaint alleging causes of action for:
(1) FMLA interference, in violation of 28 U.S.C. § 2615(a)(1); (2) FMLA retaliation, in violation of 29 U.S.C. § 2615(a)(2) & (b); (3) violation of the Americans with Disabilities Act ("ADA") and NRS § 613.330; (4) religious discrimination and hostile work environment based on religion, in violation of Title VII and NRS § 613.330; (5) retaliation, in violation of Title VII, 42 U.S.C. § 2000e-3 and NRS § 613.340; (6) age discrimination, in violation of 29 U.S.C. § 621, et seq., and NRS § 613.330 et seq.; (7) blacklisting, in violation of NRS § 613.200 and 613.210; and (8) wrongful termination in violation of Nevada public policy/bad faith termination.
II. Legal Standard
The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that "there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
In determining summary judgment, a court applies a burden-shifting analysis. "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted).
In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323-24. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).
If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., Inc. v. P. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987).
In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Celotex Corp., 477 U.S. at 324.
At summary judgment, a court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The evidence of the nonmovant is "to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See id. at 249-50.
1. FMLA claims
Under § 2615(a)(2), it is "unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter." 29 U.S.C. § 2615(a)(2) (emphasis added). "An allegation of a violation of this section is known as a discrimination' or retaliation' claim." Sanders v. City of Newport, 657 F.3d 772, 777 (9th Cir. 2011)( citing Bachelder, 259 F.3d at 1124).
However, the anti-retaliation and anti-discrimination provisions of 29 U.S.C. § 2615(a)(2) and (b), "[b]y their plain meaning... do not cover visiting negative consequences on an employee simply because [s]he has used... leave." Bachelder, 259 F.3d at 1124. In Bachelder, the Ninth Circuit described FMLA claims for retaliation or discrimination as those where an employer is accused of discriminating against an employee for opposing practices made unlawful by the FMLA, or for instituting or participating in FMLA proceedings or inquiries. Id.
Plaintiff claims her contract was not renewed because of the amount of FMLA leave she utilized. Her only "opposition" to that action was via the instant lawsuit. That opposition could not have resulted in retaliation or discrimination because, of course, the adverse employment decision had already been made. See, e.g., Gutierrez v. Grant Cnty., 2011 WL 1654548 (E.D. Wash., May 2, 2011). This is in contrast to a situation where, for example, ...