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Norman v. Clark County Department of Juvenile Justice Services

United States District Court, D. Nevada

March 24, 2017

KISHA NORMAN, Plaintiff,
v.
CLARK COUNTY DEPARTMENT OF JUVENILE JUSTICE SERVICES, Defendant.

          ORDER GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF No. 38)

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

         Plaintiff Kisha Norman was a part-time hourly employee at the juvenile detention facility operated by defendant Clark County Department of Juvenile Justice Services (DJJS). Norman was at the facility during a melee in the dining hall during which she claims to have observed two white probation officers use excessive force on an African-American juvenile. Norman asserts that as the incident was occurring, she stated "that's excessive force" and the officers heard her statement. She contends she was fired the next day in retaliation for her report of excessive force motivated by racial animus. She brings claims against DJJS for retaliation under 42 U.S.C. § 1981 and Title VII.

         DJJS moves for summary judgment. I grant DJJS's motion because Norman has not shown a genuine dispute about causation. Specifically, Norman has not presented evidence that the decision maker was aware of her report of excessive force at the time he made the decision to terminate her employment at the detention facility. She also has not raised a genuine dispute that subordinate employees with a retaliatory motive influenced or participated in the decision making process that resulted in her termination.

         I. BACKGROUND

         Norman worked as an on-call, part-time juvenile services assistant with DJJS starting in March 2012. ECF No. 38-1 at 13, 67, 78. As such, she was scheduled to work as needed during times when other staff at the juvenile detention center were on vacation or had other scheduled time off. ECF No. 56 at 7. Her duties included providing direction to the juveniles, supervising them, conducting health and welfare checks, and other duties as assigned. Id.

         According to Norman, between her date of hire and the date of the incident preceding her termination, no one ever told her that her job performance fell below the expected standards. ECF Nos. 38-1 at 84; 56 at 17. Rather, Norman states, her supervisors praised her for her efforts. ECF No. 56 at 17. However, there were some instances where probation officers complained about Norman's behavior, including that she littered out of county-marked cars, that she represented dirty laundry as clean, and that she did not properly conduct health and welfare checks. ECF Nos. 38-1 at 139, 148, 152; 38-2 at 5.

         The brawl in the dining hall took place on March 12, 2013. ECF No. 38-1 at 96. Earlier that day, probation officer David Carlisle complained to Carolyn Banks, one of the probation supervisors, that he did not want to work with Norman any longer because she did not interact with or direct the juveniles, she was "just a body, " and he did not think she would "back up the staff." Id. at 143, 190. Carlisle was concerned because he believed tensions were running high among the juveniles in his unit. Id. at 186. In response to Carlisle's concerns, Banks assigned two other employees to assist with Carlisle's unit during the dinner service. ECF Nos. 38-1 at 143, 186, 190, 204; 38-2 at 9.

         Later that day, a fight broke out in the dining hall after one of the juveniles threw his tray of food at another juvenile and a probation officer. ECF Nos. 38-1 at 98, 100, 103; 38-2 at 54.[1] Probation officers deployed pepper spray and yelled for the juveniles to get on the floor. ECF No. 38-1 at 97. Some of the juveniles complied but others continued fighting. Id. at 100, 104. Norman had her back against the wall looking out into the dining hall. Id. at 98. According to Norman, probation officer Jaqueline Alvarado told Norman to stay where she was and to keep the boys down on the floor. Id. at 100, 106. This was consistent with training for part-time hourly employees who were told that if violence breaks out, they should not intervene and should stay out of the way. Id. at 187. According to Alvarado, she told Norman to "do something, " although she provided no guidance about what she expected Norman to do. Id. at 209, 218. Lisa Johnson, the other part-time employee present during the fight, was directing the juveniles near her to remain on the ground. Id. at 211; ECF No. 38-2 at 9-10.

         One of the boys involved in the initial altercation, Harper, was lying on the floor on his stomach. ECF No. 38-1 at 107. Two probation officers, Dana DeHesa and Alvarado, handcuffed Harper but Harper started squirming on the floor. Id. at 107-08, 110; ECF No. 38-2 at 68. Two other probation officers, Damian Storla and Philip DiCalegero (who are both white), came over to assist. ECF No. 38-2 at 76. Storla and DiCalegero got Harper to his feet, but shortly thereafter took him to the ground again after Harper spit on DiCalegero. ECF No. 38-1 at 110, 111, 216.

         At this point, the stories diverge. According to Norman, one of the white probation officers then struck Harper multiple times in the head and the other put his knee in Harper's back and struck Harper several times in the back. Id. at 107, 111, 113; ECF No. 56 at 20. The two white male probation officers are Storla (in the green shirt in the video) and DiCalegero (in the red shirt in the video). Norman claims she stated "that's excessive force" loud enough for the officers to hear her. ECF No. 38-1 at 113. Norman claims that the officers looked up at her, said something to each other, and stopped hitting Harper. Id.; ECF No. 56 at 20-21. Then one of them told her to "get back." ECF No. 56 at 21. According to Norman, the video of the incident does not show the excessive force because of the angle of the video, but she was in a direct line of sight, with no obstruction. Id. All of the officers involved in controlling the scene in the dining hall (including Storla and DiCalegero) deny that they used excessive force, that they observed the use of excessive force by other officers, or that they heard Norman mention excessive force. ECF Nos. 38-2 at 69, 73, 76-77, 83-84; 42 at 2-3; 49; 50 at 3.

         After relative order was restored but while some juveniles were still lying unrestrained on the dining hall floor, Norman walked over to a door to let in fresh air. ECF Nos. 38-1 at 114-15; 38-2 at 10. Eventually the boys were lined up and returned to their unit. ECF No. 38-1 at 116. According to Banks, other employees were attempting to control the situation and providing aid to the youths who were suffering the aftereffects of the pepper spray except Norman, who was in the control room eating her lunch. ECF Nos. 38-2 at 128; 41 at 2. Norman, however, avers that she assisted in walking the juveniles back to their rooms. ECF No. 56 at 22.

         The standard operating procedures for part-time staff include a requirement that any child abuse allegations must be reported immediately to the child abuse hotline. ECF No. 38-1 at 19. Norman did not fill out a report about the incident that day. Id. at 119. According to Norman, she asked if she could fill out a report but probation officer Carlisle told her she could not because part-time employees do not fill out reports. Id. at 116; ECF No. 56 at 21. Norman also asserts that nearly all the probation officers went to watch the video of the incident before filling out their incident reports. ECF No. 38-1 at 116.

         The next day, Patrick Schreiber, then-assistant director for DJJS, attended a regularly-scheduled supervisors' meeting. Id. at 158. As normally happened at other supervisors' meetings, the discussion turned to the performance of part-time hourly employees. Id. at 159. During that discussion, one of the supervisors raised the issue that Norman did not assist during the dining hall incident. Id.; ECF No. 38-2 at 120, 151, 167. Several of the supervisors (including Banks, Donald McLeod, and Marcus McAnally) expressed that they were not interested in having Norman work on their shifts or in their units due to safety and security concerns. ECF Nos. 38-1 at 158; 38-2 at 129, 150-51; 41 at 3. According to Schreiber, this was the "expressed consensus from a number of supervisors . . . ." ECF No. 38-1 at 158. None of the supervisors volunteered to take Norman despite the regular need for personnel because the supervisors believed she would not respond appropriately in emergencies and she had to be told what to do. Id. Schreiber also heard, for the first time, various other complaints about Norman's performance, including that she did not seem motivated, did not interact well with the juveniles, and tended to be in the control room or office instead of interacting with the youth. Id. at 159-60. No one told Schreiber that Norman had stated two white officers had used excessive force on an African-American juvenile. ECF No. 38-2 at 153.

         That same day, Schreiber sent an email to Sergio Alvarez-Serna, the timekeeper, stating that supervisors had advised Schreiber that Norman was "not working out well and should not be used in the future." ECF Nos. 38-1 at 144; 38-2 at 163. Alvarez-Serna responded the next day, asking Schreiber to "[l]et me know when I can send the termination letter." Id. According to Schreiber, his decision to terminate Norman was based on what others said to him about her work performance. ECF No. 38-2 at 141. He denies ...


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