United States District Court, D. Nevada
J. Dawson United States District Judge
the Court is defendant Nicholas & Co. Foodservice,
LLC's motion for summary judgment (#17) to which
plaintiff Joe Smith responded (#21), and Nicholas & Co.
Smith worked for Nicholas & Co. Foodservice for a little
over two years. For most of that time Smith was a delivery
driver, but six months before his termination Smith earned a
promotion to Night Lead Driver. Shortly thereafter, Smith was
discharged after a shipping breakdown on his watch resulted
in delayed orders to several Nicholas & Co. customers.
Smith thinks that Nicholas & Co. fired him because of his
race. He claims that his supervisor, Christopher Howard,
showed a pattern of discrimination against him and other
African-American employees that rises to the level of
disparate treatment under Title VII. Nicholas & Co. tells
a different story. It argues that Smith's failure to
adequately perform his duties as Night Lead Driver-not his
race or color-was the true cause of his termination.
Title VII claim presents the familiar burden-shifting
analysis of McDonnel Douglas v. Green. 411 U.S. 792
(1973). McDonnel Douglas requires Smith to bring a
prima facie case of discrimination. If he does, the burden
shifts to Nicholas & Co. to present a legitimate and
nondiscriminatory reason for terminating Smith's
employment. If the company does so, the burden shifts back to
Smith to demonstrate that Nicholas & Co.'s
justification for Smith's termination was pretextual.
Although Smith meets his first burden and presents a prima
facie case of unlawful discrimination, he has not shown that
his termination was pretextual. Accordingly, the Court grants
summary judgment in favor of Nicholas & Co. Foodservice,
Smith started with Nicholas & Co. as a delivery driver in
June of 2015. Howard Decl. 2 ¶ 3, ECF No. 17 Ex. B. As a
delivery driver, Smith was tasked with safely delivering and
unloading client orders on his assigned route. Def.'s
Mot. Summ. J. 3, ECF No. 17. Smith's time at Nicholas
& Co. began like many others-with new-hire paperwork.
That paperwork included Nicholas & Co.'s Rules of
Conduct and its non-discrimination, anti-harassment, and
non-retaliation policies Id. at Ex. A-1, A-2. Smith
acknowledged receipt of those documents by signature.
Id. at Ex. A-3. Smith reported to transportation
supervisor Christopher Howard. Howard Decl. ¶ 2.
to Smith, friction between he and Howard started almost
immediately. About a month after Smith started, he claims
that Howard began critiquing his work ethic and job
performance. Smith Dep. 55:9-17, ECF. No. 17 Ex. C.
Specifically, Howard would ask Smith “[h]ow come these
guys say that you are lazy around here?” and
“they don't want to work with you?”
Id. at 55:9-10. These comments upset Smith who
believed his performance to be more than adequate. Smith
asked his coworkers if Howard asked them similar questions.
They assured Smith that he did not. Id. at
60:24-61:2. Because none of Smith's non-black coworkers
received the same treatment, Smith assumed Howard's
comments were racially motivated.
the friction between Smith and Howard, Nicholas & Co.
promoted Smith to Night Lead Driver in January of 2017.
Howard Decl. at 2 ¶ 7. As Night Lead, Smith took on
additional responsibilities. He covered for absent drivers,
trained new drivers, and supported Howard as transportation
supervisor. Def.'s Mot. Summ. J. Ex. A-5. The promotion
did not ease the perceived tension between Smith and Howard.
Smith felt that Howard did not trust him with the added
responsibilities as Lead Driver. Namely, he claims that
Howard excluded him from participating in job-applicant
interviews and hiring decisions-decisions that Smith's
non-black predecessor made regularly. Smith Dep. at 97:13-16.
The tension boiled over when Howard refused to hire four
African-American applicants that Smith referred. Id.
at 105:18-19. That led Smith to lodge two complaints about
Howard to Nicholas & Co.'s vice president of Nevada
operations, Nonda Diamant. The gist of each complaint was
that Howard was treating African-American employees and
applicants worse than their non-African-American coworkers.
Id. at 103:22, 105:21.
long after Smith's second complaint, there was a
communications breakdown in the shipping yard that delayed
several delivery routes. Smith was the Night Lead on duty
during the delay. He arrived at the yard around 2:00 a.m. to
discover the delays but did not notify Howard of the issues
as he had done in the past. Howard Decl. 3 ¶ 17-18. When
Howard arrived at 7:00 a.m., he confronted Smith about the
delayed routes. Id. at 3 ¶ 19. Howard felt that
Smith's answers were evasive or untruthful. Id.
at 3-4. Howard suspended Smith pending an investigation into
Smith's actions that night. The purpose of the
investigation was to determine whether Smith violated any
Nicholas & Co. rules or policies during the shipping
breakdown. The investigation concluded that Smith had ignored
the shipping delays, that he had neglected his duties as
Night Lead, and that he had been untruthful with Howard.
Id. at 4 ¶ 27. Howard then made the ultimate
decision to discharge Smith. Id. at 4 ¶ 29.
appealed his termination internally to no avail. He then
filed a discrimination claim with the Equal Employment
Opportunity Commission (“EEOC”) and Nevada Equal
Rights Commission (“NERC”). Def.'s Mot. Summ.
J. Ex. E-1, ECF No. 17. However, the EEOC discovered
Smith's corresponding NERC claim and dismissed its case
in favor of the Nevada administrative action. Id. at
Ex. E-2. The EEOC mailed Smith a right-to-sue letter on
November 16, 2017. Errata to Pl.'s Resp. Summ. J., ECF
No. 23 Ex. 2. Rather than await the NERC decision, Smith
filed this suit. That forced NERC to also dismiss Smith's
case against Nicholas & Co. Def.'s Mot. Summ. J., ECF
No. 17 Ex. E-2. The parties have completed discovery, and
Nicholas & Co. seeks summary judgment.
purpose of summary judgment is to avoid unnecessary trials by
disposing of factually unsupported claims or defenses.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24
(1986); Northwest Motorcycle Ass'n v. U.S. Dept. of
Agriculture, 18 F.3d 1468, 1471 (9th Cir. 1994). It is
available only where the absence of material fact allows the
Court to rule as a matter of law. Fed.R.Civ.P. 56(a);
Celotex, 477 U.S. at 322. Rule 56 outlines a burden
shifting approach to summary judgment. First, the moving
party must demonstrate the absence of a genuine issue of
material fact. The burden then shifts to the nonmoving party
to produce specific evidence of a genuine factual dispute for
trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). A genuine issue of fact
exists where the evidence could allow “a reasonable
jury [to] return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The Court views the evidence and draws all available
inferences in the light most favorable to the nonmoving
party. Kaiser Cement Corp. v. Fischbach & Moore,
Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). Yet, to
survive summary judgment, the nonmoving party must show more
than “some metaphysical doubt as to the material
facts.” Matsushita, 475 U.S. at 586.
Smith Did Not Fail to Exhaust Administrative
& Co. argues that summary judgment is appropriate because
Smith failed to exhaust his administrative remedies before he
filed suit. Generally, a Title VII claimant must file a claim
with the appropriate administrative agency-EEOC or
NERC-before filing suit in federal court. Surrell v. Cal.
Water Svc., Co., 518 F.3d 1097, 1103 (9th Cir. 2008).
The agency may elect to bring suit as a result of the
complaint, or it may not. If not, the agency must inform the
complainant that it has elected not to bring suit and
communicate whether the complainant may sue on its own. 42
U.S.C. § 2000e-5(f)(1). That communication is known as a
right-to-sue letter. The letter advises the complainant that
it has ninety days to file suit or risk being time barred.
important, failure to receive a right-to-sue letter is not an
absolute bar to a federal suit. Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 393 (1982). Because the
right-to-sue letter is not itself a bar to federal
jurisdiction, the Court treats the right-to-sue requirement
like a statute of limitations, which is subject to waiver,
estoppel, and equitable tolling. Id. Thus, a minor
imperfection with the agency's notice of rights does not
necessarily bar a subsequent law suit.
Smith received his right-to-sue letter from the EEOC in
November of 2017. Pl.'s Errata to Resp. Summ. J. Ex. 2,
ECF. No. 23. Smith then had ninety days to file suit, which
he did on February 12, 2018. See Compl., ECF No. 1.
Nevertheless, Nicholas & Co. argues that Smith failed to
exhaust because he did not allow the EEOC or NERC to complete
their own investigations before he sued. Def.'s Mot.
Summ. J. 28, ECF No. 17. It may be true that Smith's
lawsuit prevented a thorough NERC investigation into
Smith's discharge. Id. Ex. E-2 (email from NERC
to Anne T. Freeland explaining that both the EEOC and NERC
claims were prematurely dismissed). However, the right-to-sue
letter did not inform Smith that the timing of his lawsuit
prevented the agencies from conducting their investigations.
It merely advised him that “based upon [the EEOC's]
investigation, the EEOC [was] unable to conclude” that
Nicholas & Co. violated Title VII. Errata Ex. 2, ...