United States District Court, D. Nevada
MICHAEL S. BROWETT, Plaintiff,
CITY OF RENO, Defendant.
C. JONES United States District Judge
case arises under the Family Medical Leave Act of 1993
(“FMLA”). Pending before the Court is
Defendant's Motion for Summary Judgment (ECF No. 18). The
Court grants the motion in part and denies it in part.
FACTS AND PROCEDURAL HISTORY
Michael Browett began working for Defendant City of Reno
(“the City”) as a Police Cadet on September 2,
2005. (Compl. ¶ 9, ECF No. 1). After graduating first in
his class at the Northern Nevada Law Enforcement Academy, he
began duty as a Police Officer for the City, and he was
promoted to Sergeant in 2011. (See Id. ¶¶
10-13). His performance evaluations indicate that he has
always met or exceeded standards. (Id. ¶ 15).
Plaintiff took and passed the Lieutenant exam in early 2015,
obtaining the top score of all examinees. (See Id.
April 7, 2015, Plaintiff's second child was born.
(Id. ¶ 18). Prior to his child's birth,
Plaintiff had discussed with his supervisors, Lieutenants
Newman and Larson, his need to take sick leave to care for
his newborn child, his 2-year-old child, and his wife, who
had been experiencing medical issues related to the
pregnancy. (Id. ¶ 19). Because Plaintiff had
accrued sufficient paid sick leave, Lieutenant Newman or
Larson scheduled several weeks of paid sick leave into the
Reno Police Department's (“RPD”) employee
timecard management system that day. (Id. ¶
April 8, 2015, RPD Payroll Clerk Lori Heidenreich emailed
Plaintiff requesting an explanation for the sick leave,
explaining that it was appropriate if necessary to care for a
sick family member but not if it was for “bonding with
your new baby, ” in which case he would have to use
vacation time. (Id. ¶ 21). Plaintiff responded
the same day that the request was an invasion of his privacy
and a violation of the Collective Bargaining Agreement
(“the CBA”). (Id. ¶ 22). Plaintiff
also spoke with Deputy Chief Venzon about the incident, and
Venzon told him that the issue was with the City, not RPD,
that other members of RPD had had similar issues with the
City, and that Plaintiff would suffer no consequences at RPD
as a result of any conflict with the City over his use of
sick time. (Id. ¶ 23). On April 10, 2015,
Plaintiff confirmed to Heidenreich that he was not taking
“paternity leave.” (Id. ¶ 24). On
April 20, 2015, Plaintiff told Lieutenant Newman that his
wife was now suffering a life-threatening complication.
(Id. ¶ 25). Plaintiff called Deputy Chief
Venzon with this information on May 5, 2015, and Venzon
requested verification from Plaintiff's wife's
doctors. (Id. ¶ 26). That day, Plaintiff
provided Venzon with letters from two of his wife's
providers indicating the need for Plaintiff to care for his
wife and newborn for up to 12 weeks following the birth and
specifically noting that the time was not “bonding
time” but was essential for the health and well-being
of the mother and child. (Id. ¶ 27).
6, 2016, the City sent correspondence to Plaintiff indicating
that it had designated his leave as FMLA leave, that his
accrued sick leave was not available for use, and that the
time would be counted against his vacation or other leave
time. (Id. ¶ 28). Plaintiff responded on May
11, 2015 by email to Marlene Chapel of the City's Human
Resources Department, objecting to the designation of his
leave as FMLA leave and noting that he was using accrued sick
leave in accordance with the CBA. (Id. ¶ 29).
He explained that the City's assumption that the time was
being used for “bonding with his new baby” was
incorrect, and he briefly explained his wife's medical
condition. (Id.). He further explained that because
he had sufficient accrued sick leave, he did not want to take
unpaid FMLA time because he may need it later.
(Id.). On May 12, 2015, Chapel emailed Plaintiff to
tell him that the City had determined he was eligible to use
accrued sick leave but that it was still going to designate
the time as FMLA leave, i.e., it would run his FMLA leave
concurrently with his paid sick leave. (Id. ¶
2, 2015, Plaintiff was interviewed for promotion to
Lieutenant by Acting Police Chief Jason Soto and members of
the Command Staff. (Id. ¶¶ 31-32).
Plaintiff was questioned about his use of FMLA leave and
criticized about how the situation was handled. (Id.
¶ 32). On June 11, 2015, Plaintiff was informed that he
was being passed over for the open Lieutenant positions, even
though he was ranked highest on the promotion list.
(Id. ¶ 33). His FMLA leave was noted as the
reason. (Id. ¶ 34). Plaintiff was interviewed
again on July 20, 2015, and his FMLA leave was again
discussed. (Id. ¶ 35). The next day, Soto
advised Plaintiff he was again denying him promotion to
Lieutenant. (Id. ¶ 36). Plaintiff was
interviewed a third time on August 24, 2015, and he was again
denied promotion to Lieutenant. (Id. ¶¶
has sued the City in this Court under the FMLA, 29 U.S.C.
§ 2615. Defendant has moved for summary judgment.
SUMMARY JUDGMENT STANDARDS
must grant summary judgment when “the movant shows 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 which 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. 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).
determining summary judgment, a court uses a burden-shifting
scheme. The moving party must first satisfy its initial
burden. “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.” C.A.R.
Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d
474, 480 (9th Cir. 2000) (citation and internal quotation
marks 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.
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 (1970). If the moving party
meets its initial burden, the burden then shifts to the
opposing party to establish a genuine issue of material fact.
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. Pac. 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 unsupported by facts.
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 Fed. R. Civ. P. 56(e); Celotex
Corp., 477 U.S. at 324.
summary judgment stage, 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. Notably, facts are only viewed in
the light most favorable to the nonmoving party where there
is a genuine dispute about those facts. Scott v.
Harris, 550 U.S. 372, 380 (2007). That is, even where
the underlying claim contains a reasonableness test, where a
party's evidence is so clearly ...