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Negro v. Lander County

United States District Court, D. Nevada

July 13, 2018

DONALD NEGRO, Plaintiff,
v.
LANDER COUNTY, a political subdivision of the State of Nevada; KEITH WESTENGARD, an individual, Defendants.

          ORDER

          LARRY R. HICKS, UNITED STATES DISTRICT JUDGE.

         Defendants Lander County (“County”) and Keith Westengard (“Westengard”) (collectively “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.

         I. BACKGROUND

         This 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.

         Immediately 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.

         The two 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.

         In 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.

         In July 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.

         In 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.

         Negro 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.

         II. LEGAL STANDARD

         Summary 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 Cir. 2001).

         The 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.” Id.

         To 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.

         III. ...


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