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Galvan v. Taco

United States District Court, D. Nevada

March 9, 2015

PATRICIA R. GALVAN, Plaintiff,
v.
DEL TACO, Defendant.

ORDER

GLORIA M. NAVARRO, Chief District Judge.

Pending before the Court is the Motion for Summary Judgment (ECF No. 92) filed by Defendant Del Taco ("Defendant") on November 24, 2014. Plaintiff Patricia R. Galvan ("Plaintiff"), proceeding pro se, has file a Response in Opposition (ECF No. 95) and Defendant has filed a Reply (ECF No. 99).[1] Defendant also filed an Objection (ECF No. 100) asserting that the material provided by Plaintiff in her Response was procedurally deficient and not admissible evidence. Plaintiff subsequently filed a Response (ECF No. 105) to the Objection.

I. BACKGROUND

According to her Complaint, Plaintiff is a former employee at one of Defendant's restaurants. (Complaint at 4, ECF No. 4). Plaintiff alleges that in April, May, and June of 2008, she was verbally abused and sexually harassed by her store manager, Carlos Guiliani ("Mr. Guiliani"). ( Id. ). Specifically, Plaintiff alleges that Mr. Guiliani would call her and other female employees "Mexican pigs" and "bitches" and would make inappropriate comments about the private areas of the female employees' bodies. ( Id. at 4, 17-19).

Plaintiff further alleges that when she complained about Mr. Guiliani's behavior to district manager Teresa Wilson ("Ms. Wilson"), no corrective action was taken. ( Id. at 4). Then, approximately a month after reporting the harassment, Plaintiff was transferred to a different restaurant location that was far away from her residence. ( Id. at 4-5). However, after working for only a few weeks at the new location, Plaintiff's employment with Defendant was terminated without explanation by Sabina Tobogacz ("Ms. Tobogacz"), the manager of the new location. ( Id. at 5).

Plaintiff subsequently filed a charge of employment discrimination with the Nevada Equal Rights Commission (the "NERC"), which determined that "probable cause supports [Plaintiff's] charge of sexual harassment and retaliation." (NERC Determination, Complaint at 11-13, ECF No. 4). Following the NERC determination, Plaintiff filed her Complaint before this Court on December 4, 2012, alleging sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964. (Complaint at 1-2, ECF No. 4).

At calendar call on October 14, 2014, Plaintiff failed to appear, so the Court vacated the trial date and set a show cause hearing for October 23, 2014. (10/14/2014 Minutes, ECF No. 90). At the show cause hearing, Plaintiff appeared and the Court set a new trial date and extended the time to file dispositive motions. (10/23/2014 Minutes, ECF No. 91). The Court also referred Plaintiff to the Legal Aid Center of Southern Nevada and advised that she obtain counsel, which she has failed to do. ( Id. ).

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 dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. "Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party's favor." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). 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, 477 U.S. at 249. 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.

III. DISCUSSION

In its motion, Defendant asserts that it is entitled to summary judgment on Plaintiff's retaliation claim because Plaintiff has failed to make a showing of sufficient evidence to establish the existence of at least one element of her claim and Plaintiff has failed to show that Defendant's offered reasons for the adverse employment actions were pretexts. (MSJ 4:15-8:4, ECF No. 92). Similarly, Defendant argues it is entitled to summary judgment on Plaintiff's sexual harassment claim because Plaintiff has failed to make a showing of sufficient evidence to establish the existence of at least one element of her claim and Defendant has shown that it is entitled to directed verdict on a reasonable care ...


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