United States District Court, D. Nevada
R. HICKS, UNITED STATES DISTRICT JUDGE.
Lander County (“County”) and Keith Westengard
“defendants”) move for summary judgment in this
civil rights action. ECF No. 26. Plaintiff Donald Negro
opposed the motion, and defendants replied. ECF Nos. 29, 32.
The court now grants the motion, finding Negro offers
insufficient competent evidence for his claims.
civil rights action arises from Negro's employment with
the County in the Public Works Department. ECF No. 1. In
October 2009, Negro accepted an at-will position with the
County as the Road and Bridge North foreman. ECF No. 26, Ex.
2. The County simultaneously employed the following
individuals who are relevant to this decision: (1) Bert
Ramos, the Road and Bridge South foreman; (2) Jake Edgar, the
Water and Sewer Department foreman; and, (3) Gene Etcheverry,
the County Executive Director from 2009 to 2014. ECF No. 26,
Exs. 3-4. Keith Westengard was later appointed as the County
Safety Manager in 2012 and then replaced Etcheverry as the
County Executive Director in 2014. Id.
after Negro accepted the Road and Bridge North foreman
position in 2009, he began to engage in work-related conflict
with Edgar, the Water and Sewer Department foreman. ECF No.
26 at 4; ECF No. 29 at 2-5. Negro attributes the conflict to
his reports of Edgar mishandling County funds, improperly
awarding County contracts to friends and family members, and
mismanaging the Water and Sewer Department. ECF No. 26, Ex.
19; ECF No. 29 at 2-5. But defendants attribute the conflict
to Negro attempting to supervise Edgar without any authority
to do so and to the two men disagreeing on the proper
allocation of County equipment and personnel. ECF No. 26 at
4. Regardless of the reasoning for the conflict, it disrupted
the workplace. ECF No. 26, Exs. 3-4. Etcheverry, the County
Executive Director, warned the men multiple times that their
behavior could result in the termination of their employment.
ECF No. 26, Ex. 3.
men continued to conflict over the next several years,
continuing after Westengard replaced Etcheverry as the County
Executive Director in 2014. ECF No. 26, Ex. 4; ECF No. 29 at
3-4. Edgar filed an internal complaint in 2015, alleging that
Negro's actions constituted harassment. ECF No. 26, Ex.
22. Westengard hired an independent investigator to
investigate Edgar's complaint. ECF No. 26, Exs. 4, 7. The
investigator concluded that “there is a severe
personality conflict” between the two men “and
the conflict has escalated to a point of Edgar and Negro
basically refusing to work with each other and communicate
with each other.” ECF No. 26, Ex. 7. The investigator
went on to conclude that Negro's conduct toward Edgar did
not amount to harassment as defined under local, state and
federal law. Id. The investigation also led to the
County's realization that Edgar's management choices
were in fact creating project delays and costing the County
more money than necessary. Id. As a result, Edgar
was terminated as the Water and Sewer Department foreman in
August 2015. ECF No. 26, Ex. 4. Negro and Ramos both applied
for Edgar's position. Id. At the time, Ramos was
the Road and Bridge South foreman. Id. To
Negro's dismay, the position was awarded to Ramos.
Id. Ramos later became Negro's supervisor due to
a restructuring of the Public Works Department. Id.
Conflicts arose and continued between Ramos and Negro
throughout their tenure together through 2015. See
ECF No. 26, Ex. 12.
addition to conflicting with Edgar and then Ramos, Negro
caused other issues for the Public Works Department. He
conflicted with other coworkers, including Westengard and
Samuel Griffith. ECF No. 26 at 4-7; ECF No. 26, Exs. 4, 12,
13; ECF No. 29 at 3-7; ECF No. 29, Exs. 2-3. He was also
reprimanded twice in February 2015, first for failing to
attend a County Commissioner's Meeting without notice and
then for improperly terminating an employee in February 2015.
ECF No. 26, Exs. 5-6. Two months later, he was reprimanded
for making derogatory remarks towards supervisors. ECF No.
26, Ex. 9. Negro contends that none of the reprimands had
merit. ECF Nos. 29 at 4-5; ECF No. 29, Ex. 3.
2015, Negro was placed on a performance improvement plan by
Ramos. ECF No. 26, Ex. 11. During the follow-up evaluation in
January 2016, Ramos rated Negro below average in nine of
fourteen categories. ECF No. 26, Ex. 14. Westengard
terminated Negro's employment the following day, citing
disruption of the workplace and disruption of production as
bases for the decision. ECF No. 26, Ex. 15. The County
Commissioners thereafter ratified the decision to terminate
Negro's employment. ECF No. 26, Ex. 17; see also
ECF No. 26, Exs. 16, 18.
February 2016, Judie Allen-Negro's significant other-had
a conversation with the County's District Attorney, Ted
Hererra, who told her that Negro was fired because he
“couldn't keep his mouth shut.” ECF No. 29,
Ex. 2. Allen recorded the conversation unbeknown to Herrera.
ECF No. 29, Ex. 1 at 63-64, 199-200. In July 2016, Allen also
had a conversation with Westengard, who told her that all
Negro had to do to keep his job was to “stop stirring
the pot.” ECF No. 29, Ex. 2.
sues defendants, alleging claims for retaliation under the
First Amendment to the Constitution, tortious discharge,
intentional infliction of emotional distress, and negligence.
ECF No. 1. Defendants now move for summary judgment on all
claims. ECF No. 26.
judgment is appropriate only when the pleadings, depositions,
answers to interrogatories, affidavits or declarations,
stipulations, admissions, and other materials in the record
show 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). In assessing a motion for
summary judgment, the evidence and all reasonably drawn
inferences must be read in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986); Cty. of
Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th
moving party “bears the initial burden of informing the
court of the basis for its motion and of identifying those
portions of the pleadings and discovery responses that
demonstrate the absence of a genuine issue of material
fact.” Soremekun v. Thrifty Payless, Inc., 509
F.3d 987, 984 (9th Cir. 2007) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). On those issues for
which it bears the burden of proof, the moving party must
“affirmatively demonstrate that no reasonable trier of
fact could find other than for the moving party.”
successfully rebut a motion for summary judgment, the
nonmoving party must point to facts supported by the record
which show a genuine issue of material fact. Reese v.
Jefferson Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir.
2000). A “material fact” is a fact “that
might affect the outcome of the suit under the governing
law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Where reasonable minds could differ on
the material facts at issue, summary judgment is not
appropriate. See v. Durang, 711 F.2d 141, 143 (9th
Cir. 1983). A dispute regarding a material fact is considered
genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Liberty Lobby, 477 U.S. at 248. The mere existence
of a scintilla of evidence in support of the party's
position is insufficient to establish a genuine dispute;
there must be evidence on which a jury could reasonably find
for the party. See Id. at 252.