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Hirata v. Southern Nevada Health District

United States District Court, D. Nevada

September 29, 2017

VALERIE HIRATA, et al., Plaintiffs,


          Lloyd D. George United States District Judge

         Presently before the Court are the defendants' Motions for Summary Judgment (ECF Nos. 235, 236, 237, and 238). The plaintiffs oppose each of the motions (ECF Nos. 221, 222, 223, and 224).[1] The Court will grant the motions.

         Motion for Summary Judgment

         In considering a motion for summary judgment, the court performs “the threshold inquiry of determining whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); United States v. Arango, 670 F.3d 988, 992 (9th Cir. 2012). To succeed on a motion for summary judgment, the moving party must show (1) the lack of a genuine issue of any material fact, and (2) that the court may grant judgment as a matter of law. Fed. R. Civ. Pro. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Arango, 670 F.3d at 992.

         A material fact is one required to prove a basic element of a claim. Anderson, 477 U.S. at 248. The failure to show a fact essential to one element, however, "necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323. Additionally, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient.” United States v. $133, 420.00 in U.S. Currency, 672 F.3d 629, 638 (9th Cir. 2012) (quoting Anderson, 477 U.S. at 252).

         “[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. “Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact.” Id., at 323. As such, when the non-moving party bears the initial burden of proving, at trial, the claim or defense that the motion for summary judgment places in issue, the moving party can meet its initial burden on summary judgment "by 'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Id., at 325. Conversely, when the burden of proof at trial rests on the party moving for summary judgment, then in moving for summary judgment the party must establish each element of its case.

         Once the moving party meets its initial burden on summary judgment, the non-moving party must submit facts showing a genuine issue of material fact. Fed. R. Civ. Pro. 56(e); Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1103 (9th Cir. 2000). As summary judgment allows a court "to isolate and dispose of factually unsupported claims or defenses, " Celotex, 477 U.S. at 323-24, the court construes the evidence before it "in the light most favorable to the opposing party." Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970). The allegations or denials of a pleading, however, will not defeat a well-founded motion. Fed. R. Civ. Pro. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). That is, the opposing party cannot “‘rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that ‘sets forth specific facts showing that there is a genuine issue for trial.'” Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008) (quoting Fed. R. Civ. Pro. 56(e)).


         Plaintiff Angela Jones began working in September 2008 as Environmental Health Supervisor, supervising the Pool Plan Review section of the Environmental Health Division of Defendant Southern Nevada Health District (Health District). Plaintiffs Valerie Hirata and Whitnie Taylor were Environmental Health Specialists in that section. The Pool Plan Review section processed permit applications for new construction or remodeling of public pools and spas.

         The plaintiffs were members of the Service Employees International Union, Local 1107 (the Union) and worked under a Collective Bargaining Agreement that included specific grievance and arbitration provisions.

         For a brief period until March 2009, Jones reported to an Environmental Health Manager. Following that individual's resignation, Jones reported directly to Defendant Environmental Health Director Glenn Savage.

         In December 2008, the Virginia Graham Baker Act, a federal law requiring that public pool owners have their pools equipped with special pumps and drain covers to prevent drowning accidents, became effective. In Nevada, the installation of the equipment required pool owners to first obtain a remodel permit under Nevada Administrate Code §444 et seq. By early 2009, the review and approval of “VGBA remodel permit applications” was backlogged. The backlog continued to grow over the next two years. By December 2010, there were nearly 2, 000 applications pending.

         On January 4, 2011, Savage held a meeting with every manager and director in the Environmental Health Division. Jones attended the meeting. The minutes of that meeting indicate that the topic of the backlog of VGBA remodel permit applications was discussed. As recorded in the minutes:

Glenn stated Pool Plan Review program appears to be failing. Discussion ensued regarding past barriers, Regs, SOP's, training, failing or failed past practices, etc. Angela Jones stated those barriers were no longer present as of Dec and that her staff is now able to concentrate on completing and releasing pools and spas from plan review. There was a consensus among the group to allow Angela the first quarter of 2011 (Jan-Mar) to demonstrate the program's ability to release pools/spas. This was considered to the last chance period for the PPR program to move forward, otherwise, restructuring the program would be necessary in order to meet expectations. Angela will be given 1st quarter in 2011 to show significant improvements in terms of releasing pools from plan review to operations. A target of 420 pool or spa releases from plan review (140 a month) was established and agreed upon for the quarter. This is equal to one release per day for each assigned staff member.

         Jones directed Hirata and Taylor that they did not need to process VGBA remodel permit applications during this period. Hirata did not complete any VGBA remodel permit applications. The Pool Plan Review section completed 120 VGBA remodel permit applications by the end of the first quarter of 2011.

         On April 2, 2011, the plaintiffs and other employees in the Pool Plan Review section each signed an Employee Grievance Form. For the Statement of Grievance, each form referenced an attached group statement. In their Exhibit 26, plaintiffs include nine pages that “address multiple grievances.” Jones declares that the document was submitted to the Union and then forwarded to Defendant Robert Gunnoe, of the Health District's Human Resources department.[2]

         On April 5, 2011, Savage issued a memorandum moving the Pool Program to be under the direction of defendant Steve Goode, Environmental Health Manager of Operations. Following this assignment, Jones reported directly to Goode, who reported to Savage. Savage also assigned defendant Amy Irani, an Environmental Health Supervisor in the Solid Waste Program, “to conduct an evaluation/assessment of the administration of the pool program. Her evaluation will include such topics as project management, data collection, distribution of information/records, time lines of projects and Environmental Health Specialists/Administrative Staff roles in the execution of assigned projects and job duties.” When Irani completed her assessment, she gave her final report to Savage.

         On April 8, 2011, Hirata submitted a binder, with more than 300 pages, to Montana Garcia of the Health District's Human Resources department. The binder included the nine pages of grievances submitted as part of Exhibit 26.

         On April 18, 2011, Gunnoe sent an e-mail to Hirata stating that they could not proceed further with the materials dropped off with Montana until they knew more specifically who is complaining and whether all of the issues or allegations applied to all employees, or whether some aspects applied to some employees but not others. He noted that it would “help us a great deal to get some additional basic information that will allow us to proceed further.” On April 19, Hirata replied that she would “discuss these issues with all parties involved, and will contact you at a later date on how the group would like to proceed.” Jones testified that the Pool Plan Review staff decided to not respond to Gunnoe's inquiry because Irani was conducting an evaluation, and they would work with Irani. Hirata testified that the group instead decided to participate in Irani's assessment to address the issues, and did not provide further information to Human Resources until August 2011.

         On April 21, 2011, Jones and Hirata each filed a Charge of Discrimination with the Equal Employment Opportunity Commission. On April 25, 2011, Taylor filed a nearly-identical Charge of Discrimination. Each asserted that, beginning January 4, 2011, the Health District had requested the Pool Plan Review section to ignore state laws to reduce backlog. Each further asserted that if they did go along with the request, the group was threatened with transfers and separations. Each further alleged they had been discriminated against on the basis of their sex and race, and retaliated against in violation of Title VII. Although each plaintiff received a right to sue letter, none filed a complaint based on the Charges.

         In June 2011, Hirata and another Pool Plan Review employee attended a breakfast with the defendant Lawrence Sands, the Health District's Chief Health Officer. Hirata gave the binder to Sands.[3] Sands met with Savage regarding the binder, and indicated he would be sending the binder to Human Resources to investigate. Sands testified that he told Savage that he was holding Savage accountable for ensuring the program was operating as it needed to and that “everybody had to be held accountable, you know, for their performance and achieving the goals of the program.”

         On August 9, 2011, Goode issued Jones a Coaching and Counseling, identifying numerous employee performance issues. A Coaching and Counseling is a pre-disciplinary action that is not placed in an employee's permanent Human Resources file, but is kept only in the supervisor's file for that employee. Goode testified that he did not prepare the written Coaching and Counseling statement. He further testified that he did not agree with several of the assessments in the document, and that he had not observed conduct by Jones reflected in those assessments. Goode testified he believed that the document had been written by Robert Newton at the direction of Savage.

         On August 28 and 29, 2011, staff of the Pool Plan Review section signed a nine-page document that started: “This document is a group retaliation statement written by members of the Pool Program for Southern Nevada Health District Chief Health Officer Dr. Sands.” The document then recites the intent of its authors to submit the document to Goode, to be given to Savage, to be given to Sands, thus complying with the Health District's chain of command.

         On August 31, 2011, Jones received a written reprimand from Goode. The reprimand noted the prior Coaching and Counseling, and specifically the counseling to provide complete information in a timely manner as well as providing professional and succinct communication. The reprimand noted an update provided by Jones, indicating the update contained extraneous personal opinions and suggestions. It further noted that the document submitted for payroll processing “was extremely large and appeared purposefully voluminous” and included redundant copies of itineraries, e-mails, and memos. The reprimand also noted the August 29, 2011, document, noting it had been submitted to Human Resources. The reprimand noted the August 29, 2011 document referenced ...

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