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Thomas v. Clark County School District Police Department

United States District Court, D. Nevada

March 24, 2017

MICHAEL THOMAS, Plaintiff,
v.
CLARK COUNTY SCHOOL DISTRICT POLICE DEPARTMENT et al., Defendants.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Before the Court are Defendants' Motion to Strike the Amended Complaint (ECF No. 83), Defendants' Motions to Dismiss (ECF Nos. 83, 84, 107, and 110), Defendants' Motion to Extend Time re Discovery Deadlines (ECF No. 116), and Defendants' Motions for Summary Judgment (ECF Nos. 122, 123).

         II. BACKGROUND

         This case was removed on September 23, 2013. ECF No. 1. At the hearing on March 24, 2016, the Court granted the Motion to file a Third Amended Complaint, unreferred discovery, and ordered that discovery should be completed within 60 days after the filing of the responsive pleading to the Third Amended Complaint. ECF No. 77. On April 21, 2016, Defendants CCSD and Ketsaa filed two Motions to Dismiss (ECF Nos. 83, 84). ECF No. 83 Motion to Dismiss seeks dismissal of claims (3) and (4) for ADA retaliation and wrongful termination. ECF No. 84 Motion to Dismiss seeks dismissal of all claims against Defendant Ketsaa because of qualified immunity. On May 25, 2016, Defendants Christopher Klemp, and Pat Skorkowsky filed a Motion to Dismiss the TAC. ECF No. 107. They also joined ECF Nos. 83, 84 Motions to Dismiss. ECF No. 109. On August 8, 2016, Defendants filed joint Motions for Summary Judgment. ECF Nos. 122, 123.

         The Court held a hearing on pending motions on February 9, 2017. At the hearing counsel for Plaintiff Thomas stipulated to the dismissal of all claims against Defendant Filberto Arroyo, as well as to the tortious discharge claim pled against all defendants. Thus the following claims remain to be considered:

--Count I: First Amendment retaliation against all defendants.
--Count II: State civil conspiracy against all defendants.
--Count IV: ADA and NRS 613.330 retaliation against all defendants.
--Count V: Negligent hiring, retention, training and supervision against defendants James Ketsaa and Clark County School District Police Department.

         II. FAILURE TO CITE AND AUTHENTICATE

         “A trial court can only consider admissible evidence in ruling on a motion for summary judgment.” Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). “We have repeatedly held that unauthenticated documents cannot be considered in a motion for summary judgment.” Id. “The court need consider only the cited materials, but it may consider other materials in the record.” FRCP 56(c)(3)

         Defendants argue that the Responses to the Motions for Summary Judgment should be stricken for failure to include citations, for failure to authenticate attached exhibits, and for failure to otherwise comply with local rules. Plaintiffs did not authenticate any of the attached exhibits at the time of filing, but purported to do so with a single declaration by the plaintiff, filed after the Motions for Summary Judgment had been fully briefed. The Court will not consider the late-filed declaration, which in any case could not authenticate those documents of which the Plaintiff has no personal knowledge. The Court will not consider uncited narrative testimony in the Response Motions. However, the Court will consider the notices of investigations, which Defendants confirmed had been produced in discovery, as well as the evidence cited to in the Defendants' Motions. Defendants represented on the record that they would not object to the consideration of these notices, subject to reservation of the right to contest their veracity.

         III. LEGAL STANDARD

         A. Motion for Summary Judgment

         Summary judgment is appropriate 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); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When considering the propriety of summary judgment, the court views all facts and draws all inferences in the light most favorable to the nonmoving party. Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014). If the movant has carried its burden, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (alteration in original) (internal quotation marks omitted).

         IV. UNDISPUTED/DISPUTED FACTS

         A. Undisputed Facts

         The Court finds the following to be undisputed based upon the record, including the failure of Plaintiff to submit admissible evidence rebutting most of the factual assertions of the Defendants. Plaintiff was hired by the Clark County School District Police Department in August 2003 as a police officer. A few years later he applied for a promotion to sergeant. When he was not selected for promotion, Plaintiff initiated an arbitration challenging his lack of promotion. The arbitrator upheld CCSD's promotion decision. The arbitrator found that the Chief of Police at the time had made a sound discretionary decision not to promote Plaintiff. The arbitrator found the decision to be appropriate based on the prior Chief's testimony that Chief had considered Plaintiff's prior termination from a law enforcement position and a psychological report of Plaintiff that raised questions about his fitness to be promoted.

         In addition to challenging the promotional process via arbitration, on February 16, 2006 Plaintiff filed a complaint with Nevada Equal Rights Commission (“NERC”) and the Equal Employment Opportunity Commission (“EEOC”) regarding his lack of promotion to sergeant in 2005. He alleged that he was discriminated against because of his age (45) in violation of the Age Discrimination in Employment Act (“ADEA”). Plaintiff withdrew the complaint on March 9, 2006.

         In September, 2008, Plaintiff agreed to accept a 120-hour suspension without pay for his unprofessional conduct in making false statements to his ...


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