United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE.
case involves a claim under the Age Discrimination in
Employment Act of 1967 (“ADEA”). Before the court
is defendant Newmont USA Limited's Motion for Summary
Judgment. ECF No. 43. Plaintiff John Braaten filed a response
(ECF No. 45), to which Newmont replied (ECF No. 48). The
court will grant Newmont's motion because (1) Braaten has
failed to establish a prima facie case of age
discrimination and (2) even if he had met this initial
burden, Braaten's failure to report his criminal charges
to Newmont, among other factors, created a legitimate,
nondiscriminatory reason for his termination that was not
his termination, Braaten was employed for over twenty-four
years with Newmont, a mining company with operations in
Nevada. Newmont promoted Braaten several times throughout his
career, including his first supervisory foreman position in
1994. ECF No. 43 at 9. At the time of his termination,
Braaten held the title of Underground Fixed Maintenance
General Foreman and was fifty-four years old. Id. at
employee code of conduct requires its employees to report to
the company all legal charges they incur. Id. at 7.
Specifically, the “Standards of Conduct and Corrective
Action” provide that “[i]n the event you are
charged with or convicted of a crime you must report that
fact to your department and to your human resources
representative within five (5) days of being charged or
convicted.” Id. (quoting ECF No. 43-1 at 9).
It is undisputed that Braaten was aware of these policies, as
he signed forms throughout his employment acknowledging
Newmont's policies and participated in the company's
“Annual Refresher Training” sessions in 2013 and
2014, which covered the reporting policy. Id. at
8-9. Additionally, Braaten received first-hand experience
with the policy in 2012, when two separate employees that
Braaten supervised, Shaun Forsberg and Lupe Macias, contacted
him to report their DUI arrests. Id. at 9-10.
it is undisputed that Braaten failed to report his own DUI
charges to anyone at Newmont. On April 3, 2014, Braaten left
work early at approximately 1:30 p.m. and proceeded
to a nearby casino in Spring Creek, Nevada, where he consumed
alcohol. Id. at 11. At approximately 8:00 p.m. that
same day, Braaten crashed his car into the front lawn of a
residence in Spring Creek. Id. at 12. He was taken
to a local hospital, and a blood draw later revealed that
Braaten's blood alcohol content was 0.168. Id.
It does not appear that Braaten was arrested at this time.
days later, Braaten contacted his supervisor, Mine
Maintenance Superintendent Bill Burt, to inform him of the
accident and resulting absence from work. Even after Burt
directly asked Braaten if he had anything to report, Braaten
did not disclose that the accident was alcohol related.
Id. at 14 (citing ECF No. 43-2 at 24). Rather,
Braaten stated that he did not want to discuss anything
related to the accident. Id.
Staples, a Newmont HR specialist, later contacted Newmont to
explain his short-term-disability benefits. Id.
Braaten once again did not disclose that alcohol caused his
accident. Instead, he informed Staples that he wanted to use
his paid time off (“PTO”) instead of short-term
disability. Id. When Staples asked Braaten why he
would want to use PTO when he had this benefit available to
him, he simply affirmed that he wanted to use his PTO.
Id. Nonetheless, several weeks later, Braaten
submitted a claim form to Newmont for short-term disability
but did not report that the accident was alcohol related.
Id. at 15. Newmont's disability benefits,
however, do not cover injuries stemming from unlawful alcohol
use or criminal acts. Id. (citing ECF No. 43-1 at
34). During his employment, Braaten acknowledged receipt of
the benefits policies (ECF No. 43-1 at 47) and has not argued
that he was unaware of the policy exclusions(see
generally ECF No. 45). Newmont approved Braaten's
disability claim and provided him a total of approximately
$10, 000 in benefits. ECF No. 43 at 18.
2, 2014, the State of Nevada filed a criminal complaint
against Braaten for driving under the influence and willful
injury to or destruction of property. Id. at 16.
Warrants were issued for his arrest, which Braaten learned of
on June 9 and subsequently surrendered himself. Id.
At no point did Braaten report these charges to Newmont.
Id. at 17.
10, 2014, a local newspaper reported that Braaten had been
arrested. Id. Shortly thereafter, Newmont learned of
his arrest from the report. Id. On June 26, Burt and
other Newmont officials met with Braaten regarding his
charges. Id. When asked whether he was aware of the
policy requiring him to report criminal charges within five
days, Braaten replied “sure I did.” Id.
(citing ECF No. 43-1 at 35-39). Braaten also acknowledged
that he had been reminded of the policy at the recent Annual
Refresher Training. Id. at 18.
management team eventually concluded that Newmont should
terminate Braaten. Id. Newmont has asserted that
this decision did not consider Braaten's age but rather
the fact that he violated company policy by not reporting the
DUI charges and made a short-term-disability claim even
though he was ineligible for these benefits. Id. On
July 7, the management team met with Braaten to inform him of
its termination decision and the basis of that decision.
Id. at 19. During the meeting, Braaten did not claim
he was being discriminated against due to his age. Two weeks
later, Braaten met with Jack Henris, the General Manager of
Operations, in order to appeal his termination. Id.
At the conclusion of the meeting, Henris decided to uphold
the termination. Id. Once again, Braaten did not
mention age discrimination. Id.
replacement after his termination was Todd Sullivan, who at
the time was forty-four-and-a-half years old. ECF No. 43 at
March of 2015, Braaten filed suit in this court, alleging a
single count of age-related discrimination.
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); Cty of Tuolumne v. Sonora Cmty.
Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001).
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).
successfully rebut a motion for summary judgment, the
non-moving party must point to facts supported by the record
that 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.