United States District Court, D. Nevada
MARK B. DUNCAN, Plaintiff,
WASHOE COUNTY through the WASHOE COUNTY SHERIFF CHUCK ALLEN; and DOES 1-10, Defendants.
CHRISTOPHER J. HICKS Washoe County District Attorney MICHAEL
W. LARGE Deputy District Attorney ATTORNEYS FOR WASHOE COUNTY
this Court is defendant Washoe County's (“Washoe
County”) Motion for Summary Judgment. (ECF No. 24).
Plaintiff Mark Duncan (“Duncan”) has responded,
(ECF No. 25) and Washoe County has replied (ECF No. 26).
was a deputy with the Washoe County Sheriff's Office.
When a position on the Washoe County Consolidated Bomb Squad
was opened, Duncan applied for and tested for the position.
At the conclusion of the testing, Duncan was ranked sixth of
the seven candidates who completed the testing. The position
was awarded to the top ranked individual.
Duncan filed this action against Washoe County, asserting
claims of (1) a violation of Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. §621, for failure to
promote him to the Washoe County Consolidated Bomb Squad, and
(2) retaliation in violation of Title VII of the Civil Rights
judgment shall be granted “if the movant shows that
there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The burden of demonstrating the absence
of a genuine issue of material fact lies with the moving
party, and for this purpose, the material lodged by the
moving party must be viewed in the light most favorable to
the nonmoving party. Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157 (1970); Martinez v. City of
Los Angeles, 141 F.3d 1373, 1378 (9th Cir. 1998). A
material issue of fact is one that affects the outcome of the
litigation and requires a trial to resolve the differing
versions of the truth. Lynn v. Sheet Metal Workers
Int'l Ass'n, 804 F.2d 1472, 1483 (9th Cir.
1986); S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306
(9th Cir. 1982).
the moving party presents evidence that would call for
judgment as a matter of law at trial if left uncontroverted,
the respondent must show by specific facts the existence of a
genuine issue for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). “[T]here is no
issue for trial unless there is sufficient evidence favoring
the nonmoving party for a jury to return a verdict for that
party. If the evidence is merely colorable, or is not
significantly probative, summary judgment may be
granted.” Id. at 249-50 (citations omitted).
“A mere scintilla of evidence will not do, for a jury
is permitted to draw only those inferences of which the
evidence is reasonably susceptible; it may not resort to
speculation.” British Airways Bd. v. Boeing
Co., 585 F.2d 946, 952 (9th Cir. 1978).
survive a motion for summary judgment on an age
discrimination claim under the ADEA, Duncan must first
establish a prima facie case of age discrimination.
Shelley v. Geren, 666 F.3d 599, 608 (9th Cir. 2012)
(finding that the McDonnell Douglas burden-shifting
framework applies to ADEA claims at the summary judgment
stage). To establish a prima facie case of age
discrimination, a plaintiff must show that: “(1) he is
a member of a protected class; (2) he was qualified for his
position; (3) he experienced an adverse employment action;
and (4) similarly situated individuals outside his protected
class were treated more favorably, or other circumstances
surrounding the adverse employment action give rise to an
inference of discrimination.” Whitman v.
Mineta, 541 F.3d 929, 932 (9th Cir. 2008). At the
summary judgment stage, the plaintiff must produce
“evidence adequate to create an inference that an
employment decision was based on a[n] [illegal]
discriminatory criterion.” Shelley, 666 F.3d
at 608 (quoting O'Connor v. Consol. Coin Caterers
Corp., 517 U.S. 308, 312 (1996)); Stever v. U.S.
Bancorp, 3:14-CV-00273-LRH, 2015 WL 3864730, at *4 (D.
Nev. June 23, 2015), aff'd sub nom. Stever v. U.S.
Bancorp, 690 Fed.Appx. 491 (9th Cir. 2017). If the
plaintiff establishes a prima facie case, the “burden
of production, but not persuasion, then shifts to the
employer to articulate some legitimate, nondiscriminatory
reason for the challenged actions.” Shelley,
666 F.3d at 608 (quoting Hawn v. Exec. Jet Mgmt.,
Inc., 615 F.3d 1151, 1155 (9th Cir. 2010)). “If
the defendant meets this burden, plaintiffs must then raise a
triable issue of material fact as to whether the
defendant's proffered reasons for their terminations are
mere pretext for unlawful discrimination.” Id.
“To prevail on a claim for age discrimination under the
ADEA, a plaintiff must prove at trial that age was the
‘but-for' cause of the employer's adverse
action.” Id. at 607 (citing Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167, 176 (2009)).
Prima Facie Case of Age Discrimination
Member of a Protected Class
is over the age of 40 and therefore is a member of a