United States District Court, D. Nevada
M. NAVARRO CHIEF JUDGE
before the Court is the Motion for Summary Judgment, (ECF No.
30), filed by Defendants Nevada Department of Transportation
(“NDOT”), Wilson Marshall
(“Marshall”), and Sonnie Braih
“Defendants”). Plaintiff Kendrick Crawford
(“Plaintiff”) filed a Response, (ECF No. 35), and
Defendants filed a Reply, (ECF No. 42). For the reasons
discussed below, Defendants' Motion for Summary Judgment
civil rights action arises out of Defendants' alleged
discrimination and retaliation against Plaintiff in violation
of state and federal law. (See generally Compl., Ex.
B to Pet. for Removal, ECF No. 1-2). From June to October of
2015, Plaintiff worked for NDOT as a compliance auditor with
the Civil Rights Division (the “Division”).
(See Employment Offer, ECF No. 30-4); (Pl.'s
Dep. 22:13-14, ECF No. 30-3). Plaintiff's job
responsibilities included reviewing business'
applications for certification under the Nevada Disadvantaged
Business Enterprise (“DBE”) program and
performing contract compliance support duties, such as
setting DBE goals for projects. (See Pl.'s Dep.
20:2-3, ECF No. 30-7).
was initially supervised by Braih, the Division's
administrator, who is an African-American male. (Braih Decl.
¶¶ 1, 4-5, ECF No. 30-6). Braih provided DBE goal-
setting training to Plaintiff and Terry L., a white female
co-worker hired alongside Plaintiff as an audit compliance
investigator. (Braih Decl. ¶ 13). Braih declares that he
initially observed that Plaintiff was disinterested in his
training and that Plaintiff would not provide timely status
updates for project assignments. (Id. at ¶ 5).
Plaintiff's first month of employment, Braih assigned
Marshall, the Division's chief compliance auditor, to
supervise Plaintiff and Terry L. (Marshall Decl. ¶¶
1, 3, ECF No. 30-10). Marshall states that he was concerned
about Plaintiff's work performance because Plaintiff
refused to perform all the duties of his position,
disrespected Marshall, and had trouble completing basic
tasks. (Id. ¶ 5).
August, Marshall commented to Plaintiff that DBEs remind
Marshall of affirmative action programs that he observed
working with the Bureau of Prisons, where women and
minorities would fail because they lack the requisite
knowledge and skill. (Pl.'s Answer to Interrog. No. 3,
ECF No. 35-5). On September 8, 2015, Marshall threated
Plaintiff and another employee with negative performance
evaluations if they failed to relay to him anything Braih
told them. (Id.). A couple days later, Plaintiff
asked Marshall if he would be driving to a work-related event
and Marshall replied, “You used to be the cab driver;
why don't you drive, boy?” (Id.).
September 11, 2015, Plaintiff approached Braih with concerns
about Marshall. (Braih Decl. ¶ 8). Braih and Plaintiff
dispute whether the subject of racial discrimination was
broached at that meeting. (Id.); (Pl.'s Decl.
¶ 15, ECF No. 35-1). On September 14, 2015, at the
Division's weekly meeting, Marshall discussed
administrative support, training, and staffing schedules.
(Marshall Correspondence, ECF No. 30-22). Marshall also
discussed assigning some duties to Plaintiff, and Plaintiff
expressed concern about handling more tasks. (Terry L.
Correspondence, ECF No. 30-23); (Pl.'s Dep. 35:10-15, ECF
No. 30-24). Marshall told Plaintiff he was not processing
enough DBE certifications and should be able to process more.
(Grievance Letters, Ex. 25 to MSJ, ECF No. 30-25). During the
meeting, Marshall stated that he felt Plaintiff was being
disrespectful. (Marshall Correspondence, ECF No. 30-22). The
exchange became heated, and according to Terry L., Plaintiff
employed sarcasm and called Marshall a liar. (Terry L.
Correspondence, ECF No. 30-23).
after the Division's weekly meeting, Plaintiff spoke to
Braih about the exchange that occurred. (Braih Decl. ¶
9). Braih represented that he would consult NDOT's human
resources department to initiate an investigation. (Pl.'s
Decl. ¶ 16, ECF No. 35-1). According to Plaintiff, he
found out later that human resources never opened an
investigation into the matter. (Id.). Braih declares
that he did tell human resources about the exchange and also
conducted his own investigation, finding that Marshall did
not act inappropriately. (Id.).
requested written statements from Marshall, Terry L., and
Plaintiff, concerning the heated exchange at the
Division's meeting the prior day. (Braih Decl. ¶ 9).
Plaintiff submitted a series of written correspondence to
Braih, including letters entitled “Grievance Letter,
” “Grievance Letter-Revision, ” and
“Unprofessional Office Encounters, ”
(collectively “Grievance Letters”), (ECF No.
30-25). Each of the letters complain about Marshall's
competence, attitude, and apparent dissatisfaction with
Plaintiff. (Id.) The Unprofessional Officer
Encounters letter begins with Marshall's statement about
affirmative action and references that Plaintiff brought this
concern to Braih's attention three days earlier.
September 16, 2015, Braih held a Division meeting to discuss
workload and Plaintiff's duties. (Id. at ¶
10). Plaintiff acknowledges that concerns over his duties and
performance were discussed. (Pl.'s Dep. 56:6-12, ECF No.
30-31). During the meeting, Braih looked at Plaintiff and
stated: “If anybody at this table feels overworked, you
can leave.” (Id. at 56:11-12).
October 5, 2015, Braih provided Plaintiff written notice that
he was terminated. (Termination Letter, ECF No. 30-34). The
letter stated that Plaintiff was unwilling to accept
instruction or comments about his work and did not
demonstrate the skills and professional qualities necessary
to complete the requirements of the job. (Id.).
According to Plaintiff, on the day he was terminated,
Marshall remarked to Plaintiff, “this is why you people
are so unqualified for these kinds of jobs.” (Pl. Decl.
¶ 8, ECF No. 35-1).
filed his Complaint in state court on December 14, 2016,
asserting the following causes of action arising from his
termination from NDOT: (1) racial discrimination in violation
of Title VII and NRS 613.330; (2) retaliation; (3) violation
of 42 U.S.C. § 1983; and (4) violation of 42 U.S.C.
§ 1981. (See Compl. ¶¶ 11-49, ECF No.
1-2). Defendants subsequently removed the action to this
Court, (ECF No. 1), and later filed the instant Motion for
Summary Judgment on April 6, 2018, (ECF No. 30).
Federal Rules of Civil Procedure provide for summary
adjudication when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
Material facts are those that may affect the outcome of the
case. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute as to a material fact is genuine
if there is sufficient evidence for a reasonable jury to
return a verdict for the nonmoving party. See Id.
“Summary judgment is inappropriate if reasonable
jurors, drawing all inferences in favor of the nonmoving
party, could return a verdict in the nonmoving party's
favor.” Diaz v. Eagle Produce Ltd. P'ship,
521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States
v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). A
principal purpose of summary judgment is “to isolate
and dispose of factually unsupported claims.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24
determining summary judgment, a court applies a
burden-shifting analysis. “When the party moving for
summary judgment would bear the burden of proof at trial, it
must come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at
trial. In such a case, the moving party has the initial
burden of establishing the absence of a genuine issue of fact
on each issue material to its case.” C.A.R. Transp.
Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480
(9th Cir. 2000) (citations omitted). In contrast, when the
nonmoving party bears the burden of proving the claim or
defense, the moving party can meet its burden in two ways:
(1) by presenting evidence to negate an essential element of
the nonmoving party's case; or (2) by demonstrating that
the nonmoving party failed to make a showing sufficient to
establish an element essential to that party's case on
which that party will bear the burden of proof at trial.
See Celotex Corp., 477 U.S. at 323- 24. If the
moving party fails to meet its initial burden, summary
judgment must be denied and the court need not consider the
nonmoving party's evidence. See Adickes v. S.H. Kress
& Co., 398 U.S. 144, 159-60 (1970).
moving party satisfies its initial burden, the burden then
shifts to the opposing party to establish that a genuine
issue of material fact exists. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). To establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor. It is sufficient that “the
claimed factual dispute be shown to require a jury or judge
to resolve the parties' differing versions of the truth
at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.
1987). In other words, the nonmoving party cannot avoid
summary judgment by relying solely on conclusory allegations
that are unsupported by factual data. See Taylor v.
List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the
opposition must go beyond the assertions and allegations of
the pleadings and set forth specific facts by producing
competent evidence that shows a genuine issue for trial.
See Celotex Corp., 477 U.S. at 324.
summary judgment, a court's function is not to weigh the
evidence and determine the truth but to determine whether
there is a genuine issue for trial. See Anderson,
477 U.S. at 249. The evidence of the nonmovant is “to
be believed, and all justifiable inferences are to be drawn
in his favor.” Id. at 255. But if the evidence
of the nonmoving party is merely colorable or is not
significantly probative, summary judgment may be granted.
See Id. at 249-50
move for summary judgment on Plaintiff's Title VII claim
on the grounds that Plaintiff has failed to produce direct or
circumstantial evidence of racial discrimination and cannot
otherwise establish a prima facie case. (MSJ 12:21-24:4, ECF
No. 30). Defendants further move for summary judgment on
Plaintiff's retaliation claim, asserting that
Plaintiff's Grievance Letters do not constitute protected
activity, and in any event, the letters are unrelated to
Plaintiff's ultimate termination. (Id.
Untimely Requests for Admissions
preliminary matter, Defendants request that the Court deem
Plaintiff to have conclusively admitted all of
Defendants' propounded requests for admission.
(Id. 3:5 n.1). Plaintiff's counsel represents
that the delay is due to Plaintiff's prior attorney's
withdrawal and retention of Plaintiff's case file pending