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Sievert v. City of Sparks

United States District Court, D. Nevada

February 5, 2015



LARRY R. HICKS, District Judge.

Before the Court is Defendant the City of Sparks, Nevada's (the "City") Renewed Motion for Summary Judgment. Doc. #48.[1] Plaintiff Ginny Sievert ("Sievert") filed an Opposition (Doc. #52), to which the City Replied (Doc. #53).

I. Facts and Background

Plaintiff Sievert is an employee of the City and has been employed by the Sparks Fire Department ("SFD") since 1994. Sievert was the City's first female firefighter, and she was promoted to captain in August 2009. Among Sievert's annual performance appraisals before 2011, she received "excellent" or "meets or exceeds minimum standards" grades 279 times, and a grade of "needs improvement" only eight times.

In October 2011, Sievert was selected to serve on a promotional board to review eight applicants for a promotion to Fire Apparatus Officer ("FAO"). The board consisted of four members: Sievert, Division Chief Tom Garrison ("Garrison"), Captain Thom Kowatch ("Kowatch"), and Captain James Reid ("Reid"). One of the applicants for the promotion, Firefighter Christopher Jones ("Jones") approached Fire Union leadership with his concern that Sievert could not be impartial to him because of her past negative interactions with Jones. Jones referenced a number of confrontations between himself and Sievert. First, Sievert had accused Jones of reporting to work drunk in April of 2008. Sievert approached Reid with her accusation; Reid concluded that there was no evidence to support the claim. Second, after Sievert was promoted to captain, she summoned Firefighter Scott Bryant ("Bryant") to a counseling session to discuss deficiencies in his work that she had documented over a four-month period. Jones served as Bryant's Union representative and concluded the counseling session after Bryant called Sievert a "[expletive] liar, " and Sievert threatened to "bury" Bryant with documentation. Union leadership determined that Sievert could be impartial, and did not disband the board.

Three of the board members, including Sievert, believed that Jones was qualified for the promotion. Despite having ranked Jones as qualified for the promotion, however, Sievert brought her prior confrontations with Jones to the attention of the board. Sievert also told the board about two other incidents that she considered inappropriate and unprofessional. First, Sievert told the board that she had heard about-though not witnessed-an incident where Jones placed his penis over his wrist watch and asked those around him "does anybody have the time, my watch is broken, " thereby causing others to look. Jones was orally reprimanded for this tasteless and inappropriate action. Second, Jones made sexually suggestive comments during a holiday party that was attended by firefighters and their families. Apparently unaware that children were present, Jones announced over the intercom that he was going to show a "tits and ass" video, and that the men should come watch it. During Jones' interview, the promotional board asked Jones if he had done anything in his tenure with the SFD that he was not proud of, to which he responded no. By a vote of 3-1, Sievert, Kowatch, and Garrison ultimately decided not to promote Jones based on the concerns raised by Sievert and Kowatch about his immaturity and lack of professionalism. The board promoted two other individuals to captain in December of 2010.

Jones subsequently filed a Union grievance against the City for failure to provide an unbiased promotional board. The grievance was submitted to arbitration and the arbitrator issued an award in favor of Jones and against the City. After the award was issued, a captain posted the arbitration decision on the Union website and encouraged people to read it. Sievert complained that the arbitration decision was supposed to be confidential, and that posting the award on the Union website was evidence of hostile work environment and retaliation. Following this incident, Sievert wrote a number of emails to her superiors complaining of discrimination, harassment, and retaliation that was directed toward her as a result of her participation on the promotional board. In response to these complaints, the City hired an attorney to investigate Sievert's claims. The attorney concluded in an October 10, 2011 report that Sievert's claims of harassment, discrimination, and retaliation lacked merit.[2]

Following publication of the attorney report, Sievert's direct supervisor Battalion Chief Carl Blincoe ("Blincoe") stated that he felt "vindicated" of any wrongdoing related to Sievert's claims of harassment and discrimination. Sievert also began to believe that Blincoe, who she considered an ally of Jones, was "gunning" for her. Specifically, Sievert states that Blincoe took direct actions to thwart her professional growth, including delaying completion of her battalion chief Task Book in order to prevent her from obtaining a promotion. On November 11, 2011, Blincoe convened a "special meeting" among captains to discuss Sievert's suitability for leadership and to determine the accuracy of station-wide rumors about her.

In January 2012, Sievert received an unfavorable annual performance review. Specifically, Blincoe rated Sievert as "below expectation" in five of twenty-two categories, including city equipment/vehicle use, judgment, problem solving, interpersonal relations, and execution of policy. The notes section of Blincoe's appraisal specifically mentions that Sievert was "involved with a grievance concerning the FAO promotional interview process." Sievert believed that the 2011 appraisal was unfair, and appealed the decision to Chief Flock. On August 15, 2012, Chief Flock concluded that the 2011 appraisal was largely justified, and went further to address some of his own concerns about Sievert's professionalism, lack of respect for authority, and interpersonal issues.

On March 8, 2012, Sievert filed a formal complaint for gender discrimination and retaliation with the EEOC and received a "Right to Sue" letter in June 2011. Subsequently, on September 27, 2012, Sievert filed a Complaint against the City alleging two causes of action: (1) Title VII gender discrimination; and (2) Title VII retaliation. Doc. #1. Sievert filed an Amended Complaint on November 8, 2012. Doc. #13. Thereafter, the City filed its first Motion for Summary Judgment. Doc. #26. The Court granted the City's Motion as to Sievert's Title VII gender discrimination claim, and granted leave for the parties to submit additional briefing regarding Sievert's Title VII retaliation claim. The City filed its Renewed Motion for Summary Judgment on April 22, 2014.

II. Legal Standard

Summary judgment is appropriate only 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 moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In assessing a motion for summary judgment, the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Cnty. of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001).

The moving party bears the burden of informing the court of the basis for its motion, along with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On those issues for which it bears the burden of proof, the moving party must make a showing that is "sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party." Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986); see also Idema v. Dreamworks, Inc., 162 F.Supp.2d 1129, 1141 (C.D.Cal. 2001).

To successfully rebut a motion for summary judgment, the non-moving party must point to facts supported by the record which demonstrate a genuine issue of material fact. Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir. 2000). A "material fact" is a fact "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir. 1983). A dispute regarding a material fact is considered genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248. The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient to establish a genuine dispute; there must be evidence on which the jury could reasonably find for the plaintiff. See id. at 252.

In determining whether to grant or deny summary judgment, it is not a court's task "to scour the record in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (internal quotation marks omitted). Rather, a court is entitled to rely on the nonmoving party to "identify ...

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