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Crawford v. Nevada Department of Transportation

United States District Court, D. Nevada

March 31, 2019




         Pending 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 (“Braih”) (collectively “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 is DENIED.

         I. BACKGROUND

         This 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).

         Plaintiff 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).

         After 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).

         In 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.).

         On 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).

         Immediately 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.).

         Braih 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. (Id.).

         On 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).

         On 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).

         Plaintiff 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).


         The 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 (1986).

         In 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).

         If the 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.

         At 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


         Defendants 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. 24:5-30:19).

         A. Untimely Requests for Admissions

         As a 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 ...

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