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Duncan v. Washoe County

United States District Court, D. Nevada

July 11, 2018

MARK B. DUNCAN, Plaintiff,
v.
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

          ORDER

         Before 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).

         Duncan 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.

         Officer 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 Act.

         I. Legal Standard

         Summary 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).

         Once 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).

         II. Analysis

         A. Age Discrimination

         To 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)).

         1. Prima Facie Case of Age Discrimination

         a. Member of a Protected Class

         Duncan is over the age of 40 and therefore is a member of a protected class.

         b. ...


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