United States District Court, D. Nevada
ORDER GRANTING THE DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT (ECF No. 38)
P. GORDON UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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 ...