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Smith v. Nicholas & Co. Foodservice LLC

United States District Court, D. Nevada

May 16, 2019

JOE SMITH, Plaintiff,
v.
NICHOLAS & CO. FOODSERVICE, LLC, et al., Defendants.

          ORDER

          Kent J. Dawson United States District Judge

         Before the Court is defendant Nicholas & Co. Foodservice, LLC's motion for summary judgment (#17) to which plaintiff Joe Smith responded (#21), and Nicholas & Co. replied (#25).

         Joe 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.

         Smith's 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, LLC.

         I. Background

         A. Factual Background

         Joe 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.

         According 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.

         Despite 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.

         Not 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.

         B. Procedural Background

         Smith 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.

         II. Legal Standard

         The 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.

         III. Analysis

         A. Smith Did Not Fail to Exhaust Administrative Remedies

         Nicholas & 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. Id.

         Though 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.

         Here, 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, ...


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