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United States Employment Opportunity v. Wedco, Inc.

United States District Court, D. Nevada

December 4, 2014

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
WEDCO, INC., a foreign corporation, Defendant

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For U.S. Equal Employment Opportunity Commission, Plaintiff: Derek W. Li, LEAD ATTORNEY, Equal Employment Opportunity Commission, Los Angeles, CA; Elizabeth A Naccarato, United States Equal Employment Opportunity Commission, Las Vegas, NV; Sue J. Noh, United States Equal Employment Opportunity Commission, Los Angeles, CA; Anna Park, U.S. Equal Employment Opportunity Commission, Los Angeles, CA.

For Wedco, Inc., Defendant: Anthony L. Hall, LEAD ATTORNEY, Rico Cordova, Holland and Hart LLP, Reno, NV.

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ORDER

ROBERT C. JONES, United States District Judge.

This case arises from Defendant Wedco, Inc.'s (" Wedco" ) alleged violation of Title VII of the Civil Rights Act of 1964 (" Title VII" ). Pending before the Court is Wedco's Motion for Summary Judgment (ECF No. 108) and its Motion to Seal (ECF No. 106) portions of the summary judgment motion. Plaintiff United States Equal Employment Opportunity Commission (" EEOC" ) has also filed a Motion for Summary Judgment on Wedco's Equitable Affirmative Defenses (ECF No. 109) and a Motion for Summary Judgment on Wedco's Procedural Affirmative Defenses (ECF No. 110). The Court has heard oral arguments and is now prepared to make its ruling.

I. BACKGROUND

Wedco is an electrical parts distributor that operates in Northern Nevada. It is of moderate size with approximately sixty employees. (Stoltz Dep. 55:2-4, Ex. 1, ECF No. 108-1). Larry Mitchell is an African-American who worked for Wedco from October 2007 to July 25, 2008, initially as a temporary stocker in the warehouse and then as a full-time deliveryman. (Mitchell Dep. 61:24-62:12, 74:25-76:5, ECF No. 117-4). During his short time at Wedco, Mitchell was perceived as a good employee by his supervisor, Michael Potter. (Potter Dep. 74:22-75:4, Ex. 2, ECF No. 108-1). Mitchell received a pay increase and was even offered a promotion, which he turned down. ( Id. at 193:1-15). Mitchell was given time off when requested, (Potter Dep. 137:16-25), and he generally had an amicable relationship with most of his co-workers at Wedco. ( See Mitchell Dep. 113:23-114:1 (planning a fishing trip with his co-workers); Gil Decl. ¶ 4, ECF No. 117-18 (visiting co-workers in receiving area to socialize)). Near the beginning of Mitchell's employment, he noticed a hangman's noose hanging in the receiving area of Wedco's warehouse. (Mitchell Dep. 153:16-18). The noose allegedly disturbed Mitchell, though he said nothing because he believed it to be merely a Halloween decoration. ( Id. at 70:15-24). The noose was not taken down after the holiday, however. As time passed, Mitchell saw the noose whenever he chose to visit the receiving area. (Mitchell Dep. 71:16-19; Gil Decl. ¶ 4). Mitchell never expressly complained about the noose to Potter or to April Martin, Wedco's Human Resources representative, nor did he indicate that he believed the noose held racial meaning. (Mitchell Dep. 400:4-403:10; Martin Dep. 145:15-25, ECF No. 108-1; Potter Decl. ¶ 10, Ex. 21, ECF No. 108-10). Instead, Mitchell secretly took pictures of the noose in front of a calendar so that he could track the months it hung in the warehouse. (Mitchell Dep. 181:7-10). At one point, Mitchell threw the noose away only to have it reappear in the same location. (Mitchell Dep. 150:2-4). Nevertheless, he still did not report his feelings about the noose to anyone at Wedco with supervisory authority. On another occasion, while Wedco employees were milling about the receiving bay, Mitchell made the comment that " someone should throw it away." ( Id. 400:4-403:10). Mitchell claims he was referring to the noose and that Potter was present at the time, but Mitchell is unsure whether Potter heard or understood the comment. ( Id.).

The EEOC alleges that on at least one occasion, Jacob Wilson (" Wilson" ), Mitchell's co-worker at Wedco, told Mitchell that " this noose is for you." (Mitchell Dep. 150:18-151:4). Mitchell again did not report

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this incident to Potter, Martin, or any other Wedco authority. (Mitchell Dep. 155:2-22). Wilson's position at Wedco was that of " lead-man," which means he organized delivery schedules and interacted with Mitchell on a daily basis. (Wilson Dep. 262:2-Ex. 6, ECF No. 108-4). Wilson allegedly antagonized Mitchell on a routine basis. Mitchell claims that Wilson was " rude" and that he treated Mitchell " like shit." (Mitchell Dep. 293:17-20, 305:24-306:1). For example, the EEOC alleges that Wilson denied Mitchell breaks, required him to ask permission to use the restroom, and moved his cellphone to another location. (Compl. ¶ 13). Mitchell also claims that Wilson screamed profanity at him at least once, and that he kicked a " spool" over that Mitchell was loading onto his delivery truck. (Mitchell Dep. 290:20-299:7-9). In contrast to his response to the noose, Mitchell reported Wilson's obnoxious behavior to Potter multiple times. ( Id. at 290:17-19, 291:19-21, 293:13-16). After each report, Potter called Wilson in to discuss his behavior, after which Wilson's behavior would improve for a few days. ( Id. at 291:11-292:7). Mitchell even invited Wilson to go fishing on one occasion, but Wilson turned him down. ( Id. at 113:14-20). Mitchell was allegedly informed later that Wilson told a third-party that he was " not going to go fishing with no nigger." (Mitchell Dep. 114:4-6). In Mitchell's presence, Wilson used the ...


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