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McKissick v. City of Reno

United States District Court, D. Nevada

July 18, 2019

MAUREEN McKISSICK & DEANNA GESCHEIDER, Plaintiffs,
v.
CITY OF RENO and DOES I-X, Defendants.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         This is an employment action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). Plaintiffs Maureen McKissick (“McKissick”) and Deanna Gescheider (“Gescheider”) (collectively, “Plaintiffs”) assert claims for sexual harassment based on a hostile work environment and various claims of retaliation- including constructive discharge. (ECF No. 1.) Plaintiffs and Defendant City of Reno (“the City”) have filed cross motions for summary judgment seeking disposition in their favor on Plaintiffs' claims. (ECF Nos. 72, 78.)[1]

         For the reasons below, the Court will grant the City's motion for summary judgment on McKissick's hostile work environment claim and Plaintiffs' claims of retaliation. The Court likewise denies Plaintiffs' motion for summary judgment on these same claims. Gescheider's hostile work environment claim survives summary judgment.[2]

         II. BACKGROUND

         McKissick and Gescheider are former employees of the City. This action largely stems from verbal complaints made to the City's human resource department (“HR”) by Plaintiffs and non-party Brianna Wolf. These complainants ultimately brought to the fore their concerns about what Plaintiffs allege to be a sexually harassing and hostile work environment-chiefly based on sexual favoritism-at the City, under the tenure of, and due to the conduct of then-City Manager, Andrew Clinger.

         The following facts are undisputed, unless noted otherwise.

         A. The Parties and Individuals Relevant to the Events Underlying the Case

         Clinger was hired as City Manager in 2011.[3] (ECF No. 72-1 at 7; ECF No. 72-6 at 4.) He reported to the City's governing seven City Council members, including the Mayor- Hillary Schieve since 2014-and council members David Bobzien, Jenny Brekhus, Oscar Delgado, Naomi Duerr, Neoma Jardon and Paul McKenzie. (ECF No. 72-1 at 7.)

         At the time the complaints were made, there were two Assistant City Managers- Kate Thomas (“Kate”) and Bill Thomas (“Bill”)-not related. (Id.) Kate previously served as Assistant to the City Manager, then as Deputy Secretary of State, and was hired by Clinger as the City's Director of the Office of Management and Budget (“OMB”), with a $110, 000 annual salary in October 2011. (ECF No. 72-7 at 12-19; ECF No. 72-7 at 18, 23.) Both Kate and Bill reported to Clinger. (ECF No. 72-1 at 7.)

         McKissick began working for the City in March 2004 with an annual salary of $54, 000. (E.g., ECF No. 72-8 at 36-40.) In April 2012, Clinger promoted McKissick to Strategic Development Administrator as a member of the City's Management Team. (Id. at 20.) Clinger also assigned McKissick to Kate's team in the OMB. (Id. at 19.) On January 9, 2015, Clinger reclassified and promoted McKissick to Assistant to the City Manager and increased her salary to $100, 938.86. (Id. at 15-16; ECF No. 72-14 at 23, 25.) The same day, Clinger reclassified and promoted Kate to Assistant City Manager, increasing her annual salary to $153, 387.52. (ECF No. 72-7 at 6-7; ECF No. 72-14 at 23, 25.) Kate took the position left vacant by the departure of the former Assistant City Manager Cadence Matijevich. (ECF No. 72-50 at 2; ECF No. ECF No. 72-7 at 6-7.) Her reclassification increased her base pay by $44, 487, putting her salary on par with the salary of the other Assistant City Manager, Bill. (ECF No. 72-50.) Kate's salary was comparable to the salary Matijevich received of $153, 449. (Id.) Nonetheless, some City employees believed that Kate was unqualified for the position. (E.g., ECF No. 78-4 at 10.) There was a sentiment Clinger favored Kate and rumors abounded about there being a sexual and inappropriate relationship between Kate and Clinger. (ECF No. 78-4 at 10, 12; ECF No. 77-7 at 18; ECF No. 77-32 at 38-39; ECF No. 72-11 at 9; ECF No. 77-33 at 27; ECF No. 72-1 at 20-21.)

         In their respective roles at the time, both McKissick and Kate reported directly to Clinger and had to work closely with each other. (See, e.g., ECF No. 72-14 at 25-27; ECF No. 77-33 at 9-10 (providing details on some of the working relationship).)

         On September 18, 2012, Clinger hired Gescheider as Director of Communications and Community Engagement, with an annual salary of $95, 000 and reporting to Matijevich at the time. (ECF No. 72-9 at 6.) On May 13, 2014, Clinger increased Gescheider's annual salary to $108, 889.86, effective October 1, 2014. (Id. at 4.) In April 2015, Clinger reclassified Gescheider's benefits package from mid-management to management, increasing her salary to the range of $126, 541-$165, 770. (Id. at 2.)

         In February 2015, the City Council appointed Ashley Turney (“Turney”) to the position of City Clerk, with a $100, 000 annual salary. (ECF No. 82-1 at 4.) Turney reported to the City Council-not Clinger. (See Reno City Charter, Art. III, § 3.040(2); ECF No. 78-4 at 16.) The City Clerk's salary is also fixed by the City Council. (Id.; ECF No. 82-2 at 3.) In April 2016, the City Council directed Clinger to collaborate on an appropriate compensation level for Turney in anticipation of Turney's annual performance evaluation. (E.g., ECF No. 82-4 at 41, 46; ECF No. 82-1 at 6-8; ECF No. 82-3 at 9-10.) Clinger was to recommend a salary adjustment for Turney considering appropriate compensation levels based upon the scope of Turney's responsibilities and performance. (ECF No. 82-4 at 41 (K.2), 53-55)

         Robert Chisel was the Director of Finance and Administration for the City of Reno and also reported to Clinger, and to whom the human resources director-Kelly Leerman-reported. (Id.)

         B. Other Relevant Facts Regarding the Work Environment

         In January 2015, a video called the “Hot Crazy Matrix” (“Video”) was shared in City Hall during an executive team meeting. (ECF No. 72-1 at 13-14, 79-81; ECF No. 77-32 at 15, 23, 26.) Per the Video, the term “unicorn”-describing a very attractive woman who is not-or only a little-crazy-came to be used. (E.g., ECF No. 72-1 at 13-14; ECF No. 77-21 at 29-30; ECF No. 72-19 at 7.) Kate, Gescheider and Turney referred to each other as “unicorns, ” and collectively referred to themselves as the “unicorn trifecta.” (ECF No. 77-32 at 22; ECF No. 72-1 at 80; ECF No. 72-19 at 7, 9-10; ECF No. 72-11 at 8-11.) Clinger used the term “in a joking manner” to refer to both Kate and Gescheider in the context of work and with reference to their appealing characters. (ECF No. 77-32 at 25; see also ECF No. 77-21 at 28-29.) Clinger used the term to refer to Kate on multiple occasions. (ECF No. 77-21 at 27; ECF No. 72-14 at 74.) At one executive staff meeting Clinger referred to Kate as less than a unicorn and Gescheider gave Kate a stuff animal the next day “to say . . . you are fine.” (ECF No. 77-32 at 21.)

         Gescheider testified that Kate and Clinger acted like they were “husband and wife[, ]” but she did not care whether they were having a romantic relationship; she cared about how she felt during the interaction. (ECF No. 77-32 at 28.) Gescheider thought Clinger put Kate “in a tough spot on a regular basis. I think she was doing what she had to do to survive.” (Id. at 29.) Neither McKissick nor Gescheider personally knew whether Clinger and Kate had a sexual relationship, but thought the two were romantic. (ECF No. 77-32 at 28, 30; ECF No. 72-14 at 67-68; ECF No. 82-6 at 11.) Kate and Clinger both denied ever being romantically or sexually involved. (ECF No. 72-1 at 20-21, 73-74.) Both Wolf and McKissick believed Clinger had an inappropriate sexual relationship with Turney and that Turney spent an unnecessary amount of time interacting with Clinger.[4] (ECF No. 78-4 at 10, 12; ECF No. 72-1 at 81.) Turney denied any sexual relationship. ECF No. 72-1 at 59.)

         On April 22, 2016, Clinger reorganized the City Manager's Office based on recommendations from the Urban Land Institute. (ECF No. 72-14 at 88-89; ECF No. 77-33 at 28.) As part of the reorganization, Clinger created the Office of Strategy and Policy to be managed by McKissick. (Id.) Clinger reassigned three employees who were previously assigned to Kate to work with McKissick. (Id.) Kate left the meeting about the reorganization in tears (id.; ECF No. 77-32 at 31). Neither Kate nor McKissick knew about the reorganization prior to the meeting. (Id.; ECF No. 77-7 at 9; ECF No. 72-14 at 25.) The reorganization exacerbated tension between Kate and McKissick. (ECF No. 72-1 at 77- 78; ECF No. 78-4 at 16 (noting Gescheider' position that it was the way in which Clinger made the job-duty transfers to McKissick that fostered hostility).) Believing McKissick manipulated Clinger, Kate refused to talk to McKissick for a period of time, and generally avoided interacting with McKissick. (ECF No. 72-1 at 21; ECF No. 72-19 at 14-16; ECF No. 77-33 at 16.) In May, McKissick complained to Wolf about Kate, saying: “Things with Kate are worse than ever . . . She blames me.” (ECF No. 72-55 at 2-3.)

         Gescheider believed that around this time Clinger “recognized Kate wasn't performing.” (ECF No. 77-32 at 31; see also ECF No. 77-2 at 12-13, 16-19.) She noticed Clinger began treating Kate meanly. (ECF No. 77-32 at 31.) Gescheider testified to her /// belief that Clinger used his power and control to treat women differently than men. (Id. at 33.)

         Gescheider claims that Clinger touched her in an unwanted manner on three separate occasions. (ECF No. 77-32 at 11-12 (neck touching), 14 (two separate coffee bar incidents).) Chisel also reported seeing Clinger repeatedly rub Gescheider's leg on May 13, 2016, during an executive team meeting. (ECF No. 77-7 at 17.) Chisel reported witnessing a similar leg rubbing incident two weeks later and suggested this may have been Clinger's way of intimidating Gescheider ‘to keep her in line.' (Id.)

         On June 21, 2016, at a special meeting the City Council evaluated Clinger's performance as City Manager and voted unanimously to renew Clinger's contract. (ECF No. 72-1 at 8; ECF No. 77-7 at 9-10.) However, Duerr commented on a ‘sense of fear' among female managers at the City. (Id.) The following day, Mayor Schieve called a meeting, which included the executive staff, to educate on the City's sexual harassment and retaliation policies. (Id.)

         C. Internal Complaints

         On June 29, 2016, Wolf made a verbal sexual harassment, retaliation and hostile work environment claim against Clinger to the City's HR. (ECF No. 78-4 at 10.) Wolf particularly noted hearing Clinger and Kate talking with giggling, moaning and groping- but did not actually see such conduct. (Id.; see also ECF No. 72-15 at 34.) She noted Clinger and Kate had a casual relationship which made the working environment uncomfortable and that tension resulted from the way Kate treated McKissick following the change of assignments on April 22, 2016. (ECF No. 78-4 at 11.) Wolf reported that the tension and additional work caused McKissick significant stress. (Id.)

         On July 1, 2016, McKissick filed an internal complaint against Clinger alleging hostile work environment based on Clinger's alleged sexual favoritism of Kate and retaliation. (ECF No. 78-4 at 11-12.) McKissick reported believing Kate and Clinger had a romantic relationship, that Clinger made organizational work decisions based on personal relationships, and that Kate was not held accountable for work-related mistakes. (Id. at 12.) She reported that Gescheider told her Clinger made sexual advances to her and that Gescheider asked McKissick to sit next to Clinger during meetings so Gescheider would not have to. (Id.; ECF No. 82-6 at 12; ECF No. 77-33 at 34-35.)

         That same day, Gescheider reported to HR illegal conduct in connection with the Reno Police Department's website and relayed that Clinger made sexual advances to her, including through text messages on a texting app Clinger had her and Kate downloaded. (ECF No. 78-4 at 14-16.) Gescheider informed that she deleted the app shortly after downloading it and told Clinger she did not want to participate in texts or have him make sexual advances on her (ECF No. 78-4 at 15.) Gescheider also reported that Clinger directed women not to speak directly to City Council. (Id.; see also ECF No. 77-7 at 8 (Leerman relaying materially the same); see also ECF No. 77-32 at 33 (providing that Clinger treated women differently and had different expectations for women related to power and control).)

         D. After the Complaints and dinger's Response to the Investigations and Departure from the City

         City Attorney Karl Hall informed Clinger that Wolf filed a complaint against him. (ECF No. 83 at 6 (the City notes the matter is undisputed); ECF No. 78-4 at 11.) On July 8, 2016, Clinger mailed executive staff an article which, inter alia, included language warning employees not to upset their boss. (ECF No. 72-1 at 23; ECF No. 72-13 at 41.) Clinger accused the complainants of having an organized effort to have him terminated. (E.g., Id. at 23, 28; ECF No. 77-6 at 23-24.) Clinger and Kate texted each other venting about the complaints filed and the related events. (ECF No. 77-2 at 22-32, 35-59.) In response to a news article that Clinger was accused of sexual harassment, Clinger released a public statement proclaiming his innocence and stating that the accusations were “utterly ridiculous.” (ECF No. 72-46; ECF No. 83-6 to 2-3.) Clinger did not identify Plaintiffs specifically.

         Clinger signed a separation agreement with the City on September 14, 2016, and his personnel file reflects that he was terminated. (ECF No. 72-1 at 8; ECF No. 72-6 at 1- 10.)

         E. Internal Investigations

         The City conducted two internal investigations, the first by attorney Alice Campos Mercado, and the other by retired judge, Judge David Wall. (ECF No. 1 at 9, 11-14). Respectively, the investigations resulted in a “Mercado Report” submitted on July 21, 2016 (ECF No. 72-15 at 87), and a “Wall Report, ” submitted on November 21, 2016.[5] (See, e.g., id. at 13; ECF No. 72-1 at 3.)

         The Mercado Report concluded that the complainants' claims were due to a displeasure and misperceptions related to Clinger's management style and perceived lack of decorum and professionalism among the City Manager and his executive staff. (ECF No. 72-15 at 112.)

         The Wall investigation was initiated to look into any details not previously examined or that may warrant further inquiry. (ECF No. 72-1 at 3.) The Wall Report divided Plaintiffs' complaints into primary and secondary claims. (See., e.g., id. at 95; ECF No. 72-21 at 79.) McKissick's primary complaint was that her work environment was highly stressful and uncomfortable following Clinger's reorganization of the City Manager's Office on April 22, 2016. (ECF No. 72-21 at 81, 83.) Gescheider's primary complaint was her fear of retaliation as a whistleblower. (Id. at 79-80, 82.) The secondary complaints included: Clinger's touching of Gescheider in the elevator and at the coffee bar; Clinger sending inappropriate texts to Gescheider via the texting app Telegram; the article Clinger sent to the executive staff-alleged to be retaliatory; the alleged theft of personal items from Gescheider's office after the complaints were filed; the alleged romantic relationship between Clinger and Kate; Clinger's alleged dissemination[6] of the “Hot Crazy Matrix” video; and Clinger's alleged inappropriate relationship with Turney. (Id. at 81-84.) The Wall Report concluded that McKissick and Gescheider's primary complaints were meritorious, but the secondary complaints were largely unsubstantiated.[7] (ECF No. 72-1 at 97; ECF No. at 72-21 at 79-84.)

         F. Plaintiffs' Administrative Leave, Filings with the Nevada Equal Rights Commission (“NERC”) and Departures from the City

         In mid-October 2016, McKissick and Gescheider accepted the City's offer to be placed on paid administrative leave pending the completion of the Wall investigation. (ECF No. 72-53.)

         On November 16, 2016, Gescheider filed a Charge of Discrimination with NERC. (ECF No. 72-12 at 42-46.) On November 17, 2016, the City sent Gescheider a letter concluding her paid administrative leave and requesting that she ...


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