-GWF Pulliam v. United Airlines, Inc., No. 2:2010cv01406 - Document 58 (D. Nev. 2012)
Court Description: ORDER Denying 38 Motion to Strike Affidavit of Angela Pulliam; Denying 39 Motion to Strike Declaration of Jacqueline Van Dyke; and Granting 25 Motion for Summary Judgment. Signed by Judge Miranda M. Du on 07/24/2012. (Copies have been distributed pursuant to the NEF - AC)
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-GWF Pulliam v. United Airlines, Inc. Doc. 58 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 *** 10 11 ANGELA PULLIAM, Case No. 2:10-cv-01406-MMD-GWF Plaintiff, 12 ORDER v. 13 14 15 UNITED AIRLINES, INC., a Delaware corporation, Defendant. 16 17 18 Before the Court is Defendant United Airlines, Inc.’s Motion for Summary 19 Judgment (dkt. no. 25), Motion to Strike Affidavit of Angela Pulliam (dkt. no. 38), and 20 Motion to Strike Declaration of Jacqueline Van Dyke (dkt. no. 39). The Court has also 21 considered the oppositions and replies filed for these motions. 22 I. BACKGROUND 23 Plaintiff Angela Pulliam (“Pulliam”), an African American, was previously 24 employed by United Airlines, Inc. (“United”) as a Customer Service Representative at 25 McCarran International Airport. In August 2010, Pulliam filed suit against United for race 26 and color discrimination and retaliation. Pulliam alleges she was subjected to race and 27 color discrimination on two occasions, the second of which Pulliam also believes was 28 retaliatory in nature. Dockets.Justia.com 1 First, in August 2007, one of Pulliam’s supervisors, a Caucasian woman named 2 Patricia Giusti (“Giusti”), issued Pulliam a Level 1 disciplinary notice for being absent 3 from her work area during work hours (the “Giusti Incident”).1 Pulliam made a complaint 4 against Giusti in November 2007, disputing Giusti’s claim that she was absent from her 5 work area and arguing that Giusti’s treatment of her was motivated by race. United 6 investigated Pulliam’s complaint and determined no race discrimination occurred. United 7 did, however, reduce Pulliam’s level 1 discipline to a letter of counsel. 8 Second, in December 2007 approximately one month after Pulliam made the 9 complaint against Giusti another one of Pulliam’s supervisors, LaToyia Hill (“Hill”), an 10 African American, recommended that Pulliam be fired for using inappropriate language 11 towards two United passengers and for leaving work early on a regular basis (the “Hill 12 Incident”). Pulliam was terminated in January 2008 after an investigative hearing where 13 Pulliam was represented by the Union. 14 Pulliam filed suit against United in August 2010 asserting the following claims: (1) 15 race and color discrimination in violation of Title VII of the Civil Rights Act of 1964 and 16 NRS 613.330, (2) race and color discrimination in violation of 42 U.S.C. § 1981, (3) 17 injunctive relief, and (4) retaliation in violation of Title VII. United has now filed a motion 18 for summary judgment as to all claims. Pulliam filed an opposition to United’s motion 19 and in support of that opposition attached, among other exhibits, her own affidavit and a 20 sworn declaration by Jacqueline Van Dyke, another former United employee. United 21 subsequently filed two motions to strike portions of both the affidavit and the declaration 22 for purported violations of the Federal Rules of Evidence. For the reasons discussed 23 below, the Court denies United’s motions to strike but grants its motion for summary 24 judgment. 25 /// 26 /// 27 28 1 United has a progressive discipline policy with level 1 being the least severe. 2 1 II. DISCUSSION 2 A. 3 United asks the Court to strike certain portions of Pulliam’s affidavit and 4 Jacqueline Van Dyke’s sworn declaration, both submitted by Pulliam in support of her 5 opposition to United’s motion for summary judgment. 6 should strike these portions because they are inadmissible as evidence. However, “[a] 7 trial court can only consider admissible evidence in ruling on a motion for summary 8 judgment.” Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002). Therefore, a motion 9 to strike is unnecessary because the Court is already obliged to disregard any 10 inadmissible evidence in the affidavit and declaration. Therefore, United’s motions to 11 strike are denied. 12 13 B. United’s Motions To Strike United argues that the Court United’s Motion For Summary Judgment 1. Summary Judgment Legal Standard 14 The purpose of summary judgment is to avoid unnecessary trials when there is no 15 dispute as to the facts before the court. Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 16 F.3d 1468, 1471 (9th Cir.1994). Summary judgment is appropriate when the pleadings, 17 the discovery and disclosure materials on file, and any affidavits “show there is no 18 genuine issue as to any material fact and that the movant is entitled to judgment as a 19 matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is “genuine” 20 if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for 21 the nonmoving party and a dispute is “material” if it could affect the outcome of the suit 22 under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). 23 Where reasonable minds could differ on the material facts at issue, however, summary 24 judgment is not appropriate. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 25 1995), cert. denied, 516 U.S. 1171 (1996). “The amount of evidence necessary to raise 26 a genuine issue of material fact is enough ‘to require a jury or judge to resolve the 27 parties' differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 28 902 (9th Cir. 1983) (quoting First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 288–89 3 1 (1968)). In evaluating a summary judgment motion, a court views all facts and draws all 2 inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. 3 Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). 4 The moving party bears the burden of showing that there are no genuine issues 5 of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). “In 6 order to carry its burden of production, the moving party must either produce evidence 7 negating an essential element of the nonmoving party’s claim or defense or show that 8 the nonmoving party does not have enough evidence of an essential element to carry its 9 ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 10 F.3d 1099, 1102 (9th Cir. 2000). 11 requirements, the burden shifts to the party resisting the motion to “set forth specific 12 facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The 13 nonmoving party “may not rely on denials in the pleadings but must produce specific 14 evidence, through affidavits or admissible discovery material, to show that the dispute 15 exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do 16 more than simply show that there is some metaphysical doubt as to the material facts.” 17 Orr v. Bank of America, 285 F.3d 764, 783 (9th Cir. 2002) (internal citations omitted). 18 “The mere existence of a scintilla of evidence in support of the plaintiff's position will be 19 insufficient.” Anderson, 477 U.S. at 252. 20 2. Once the moving party satisfies Rule 56’s Title VII Discrimination 21 To maintain a claim for Title VII discrimination, a plaintiff must either (1) produce 22 direct evidence demonstrating the employer’s conduct was, more likely than not, 23 motivated by a discriminatory reason, or (2) satisfy the factors of the McDonnell Douglas 24 burden-shifting framework. Surell v. Cal. Water Serv., 518 F.3d 1097, 1105 (9th Cir. 25 2008). The Court will first discuss whether Pulliam produces sufficient direct evidence. 26 a. Direct Evidence 27 “Direct evidence is ‘evidence which, if believed, proves the fact [of discriminatory 28 animus] without inference or presumption.’” Vasquez v. Cty. of Los Angeles, 349 F.3d 4 1 634, 640 (9th Cir. 2003). Pulliam provides no direct evidence of discrimination. To the 2 contrary, with respect to the Giusti Incident, Pulliam admitted that Giusti never said 3 anything to her that was inappropriate with regard to race (dkt. 25, United’s Motion for 4 Summary Judgment, Ex. 3, Pulliam’s Depo., 118:9-19). With respect to the Hill Incident, 5 Pulliam admitted that Hill, also an African American, would not discriminate against her 6 on the basis of race. (Id., at 162:24-164:4). Finally, Pulliam makes no argument in her 7 opposition that she has direct evidence of discrimination. Accordingly, Pulliam must 8 satisfy the factors of McDonnell Douglas to prevail on United’s motion for summary 9 judgment. 10 b. McDonnell Douglas Analysis 11 Under the McDonnell Douglas framework, the plaintiff carries the initial burden to 12 establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 13 U.S. 792, 802 (1973). The plaintiff must show that (1) she is a member of a protected 14 class, (2) she was performing according to her employer’s legitimate expectations, (3) 15 she suffered an adverse employment action, and (4) similarly situated employees 16 outside her protected class were treated more favorably. Vasquez, 349 F.3d at 640 n. 5. 17 If the plaintiff meets her burden, the burden then shifts to the employer to articulate a 18 legitimate, non-discriminatory reason for its conduct. 19 provides such a reason, the burden shifts back to the plaintiff to prove that the 20 employer’s reason is a pretext for discrimination. Id. Id. at 640. If the employer 21 As mentioned above, Pulliam alleges two separate occasions of discrimination, 22 the Giusti Incident and the Hill Incident. The Court will conduct the McDonnell Douglas 23 analysis as to each incident individually. 24 i. The Giusti Incident 25 Pulliam fails to establish a prima facie case of discrimination as to the Giusti 26 Incident because the evidence provided demonstrates she was not performing according 27 to United’s legitimate expectations. Giusti issued Pulliam a Level 1 discipline because 28 Pulliam was absent from her work area during work hours, violating two of United’s 5 1 Rules of Conduct (dkt. no. 25, Ex. 4, Rules of Conduct, Rules 37 and 41; id. at Ex. 5, 2 Report of Non-Punitive Disciplinary Action). Specifically, on the day in question, Pulliam 3 was required to assist passengers whose flight had been cancelled. (Id. at Ex. 6, Giusti 4 Depo., 21:24—24:10; id. at Ex. 5, Report of Non-Punitive Disciplinary Action.) However, 5 when Giusti (Pulliam’s supervisor that day) went to the terminal gate to supervise the 6 process, she could not locate Pulliam. (Id.) Giusti asked other United employees at the 7 terminal gate for Pulliam’s whereabouts but no one knew where she was. (Id.) Giusti 8 checked the terminal gate and the general work area, including the break room, and 9 could not locate Pulliam. (Id. at Ex. 6, Giusti Depo., 23:22—24:1.) 10 Pulliam claims that she did not leave her work area, and that Giusti could have 11 easily located her by calling her on the radio. However, Giusti did not believe Pulliam 12 was carrying a radio because employees working in that position do not carry radios. 13 (Id. at 24:7-10.) In any event, even if Pulliam was present in her work area, it is sufficient 14 that Giusti legitimately believed otherwise when she issued Pulliam a level 1 discipline. 15 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) (“courts ‘only 16 require that an employer honestly believed its reason for its actions, even if its reason is 17 foolish or trivial or even baseless’”).2 18 evidence demonstrating that she was performing up to United’s reasonable 19 expectations. Therefore, Pulliam fails to provide sufficient 20 However, even if Pulliam were performing according to United’s reasonable 21 expectations, Pulliam also cannot show that there is a factual dispute that similarly 22 situated employees outside her protected class were treated more favorably than her. 23 Indeed, Pulliam points to no other employee who was absent from the work area during 24 25 26 27 28 2 United also claims that Pulliam’s computer transaction logs show that she was logged off of her computer during her alleged absence. However, these logs, in the form provided to the Court, are almost indecipherable, (See dkt. no. 25, Motion for Summary Judgment, Ex. 8), and therefore unhelpful. Irrespective of what the logs show, however, Giusti legitimately believed Pulliam was absent from her work area during the time in question, and as stated above, this is sufficient. 6 1 work hours that was not issued a level 1 disciplinary notice. She merely argues that she 2 was the only African American working at the terminal gate during the shift in question, 3 and was also the only employee that was disciplined during the shift. However, this 4 argument is meaningless absent any evidence that there were non-African American 5 employees whom Giusti also believed was absent from the work area and whom she did 6 not discipline. Therefore, Pulliam fails to establish this element of the prima facie case 7 as to the Giusti Incident. 8 In addition, Pulliam fails to demonstrate that she suffered an adverse employment 9 action as to the Giusti Incident. For discrimination purposes, an adverse employment 10 action is defined as an adverse action that “materially affect[s] the compensation, terms, 11 conditions, or privilege[s] of [plaintiff’s] employment.” Rodriquez v. Pierce Cty., 267 Fed. 12 Appx. 556, 557 (9th Cir. 2008) (quoting Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 13 1126 (9th Cir. 2000)). Initially, Giusti issued Pulliam a level 1 disciplinary notice, the 14 least severe level of discipline at United. (Dkt. no. 25, Motion for Summary Judgment, 15 Ex. 5, Report of Non-Punitive Disciplinary Action.) But ultimately the level 1 discipline 16 was reduced to a Letter of Counsel, a document which basically explained that Pulliam is 17 not to leave her work area again during work hours in order to avoid future discipline. 18 (Id. at Ex. 7.) This letter did not affect Pulliam’s employment terms, conditions, etc., and 19 is merely placed in her file as documentation of the incident. 20 bargaining agreement entered into between United and Pulliam’s union notes that letters 21 of counsel are non-disciplinary. (Dkt. no. 37, Reply, Ex. 1, CBA Agreement, Article XVII, 22 § D.) Therefore, Pulliam has not demonstrated she suffered an adverse employment 23 action as a result of the Guisti Incident. Also, the collective 24 In sum, Pulliam fails to provide sufficient evidence to establish a prima facie case 25 of discrimination with respect to the Giusti Incident. Accordingly, Pulliam fails to satisfy 26 the McDonnell Douglas factors and the Court grants United’s motion for summary 27 judgment as to the Giusti Incident. 28 /// 7 The Court will now discuss whether Pulliam satisfies the McDonnell Douglas 1 2 factors as to the second alleged incident of discrimination, the Hill Incident. ii. 3 The Hill Incident 4 Pulliam was terminated approximately two months after she made a complaint of 5 discrimination against Giusti. LaToyia Hill, one of Pulliam’s supervisors, recommended 6 Pulliam’s termination for two reasons: (1) a confrontation Pulliam had with two United 7 passengers, and (2) leaving work early regularly. Pulliam alleges she was terminated 8 because of her race, and that these two reasons are merely pretextual.3 9 Specifically, on December 16, 2007, Pulliam was working at a terminal gate when 10 two United passengers missed their flight. (Dkt. no. 25, Motion for Summary Judgment, 11 Ex.15, Incident Report prepared by Beth Nagurny; Ex. 16, Passenger Complaint from 12 Mike Schmid; Ex. 17, Passenger Complaint from Ron Clowes.) One of the passengers 13 purportedly told Pulliam that it was United’s fault that they missed the flight. (Id.) The 14 passengers both reported that Pulliam responded by calling him an “asshole.” (Id.) 15 Pulliam’s co-worker, Robert De Leon, was present and overheard Pulliam call him a 16 “smart ass.” (Id. at Ex. 18, Robert F. De Leon’s Written Statement.) Pulliam claims that 17 she did not use profanity, but instead said “don’t get smart asking me questions.” (Id. at 18 Ex. 3, Pulliam Depo., 154:7-155:3). 19 Following Pulliam’s exchange with the two passengers, Hill attempted to locate 20 Pulliam to discuss the incident but was not successful. (Id. at Ex. 25, Hill Decla., ¶ 6.) 21 Hill subsequently checked the employee parking lot records and discovered that Hill not 22 only swiped out of the parking lot prior to the end of her shift on the day of the Hill 23 Incident, but on numerous occasions during the months of November and December. 24 /// 25 /// 26 27 28 3 Hill recommended Pulliam’s termination and the termination decision was made after an investigative review hearing where Pulliam was represented by her union representative. Pulliam does not claim that she was subjected to discrimination or retaliation during the investigative review hearing process. 8 1 (Id. at Ex. 25, Hill Decla., ¶¶ 6, 7; Ex. 20, Pulliam’s Parking Lot Records.)4 2 conducted an investigation into Pulliam’s exchange with the two passengers and her 3 leaving work early and ultimately decided to recommend that Pulliam be terminated. (Id. 4 at Ex. 25, Hill Decla., ¶ 11.) 5 6 Hill The Court will now analyze the McDonnell Douglas factors as to Pulliam’s claim that her termination was racially motivated. (1) 7 Prima Facie Case 8 Pulliam meets the elements of a prima facie case of discrimination as to the Hill 9 Incident, at least with respect to her leaving work early. First, Pulliam provides sufficient 10 evidence to demonstrate she was performing up to United’s expectations when she was 11 terminated because it was common for some employees to leave work early without 12 permission from supervisors. Pulliam attaches a declaration from another former United 13 employee, Jacqueline Van Dyke, wherein Van Dyke states that it was “very common that 14 when the last flight that we would be working on for a particular shift was finished that 15 the Service Directors (who were often delegated this task by Supervisors) or Supervisors 16 would dismiss us and tell us to leave and ‘have a good day’ even though it might still be 17 several minutes before our official stop work time.” (Dkt. no. 32, Van Dyke Decla., Ex. 2, 18 ¶ 5.)5 In her affidavit, Pulliam claims that supervisors would often “see them leaving and 19 wish them a good evening and thank them for their work that day.”6 (Id. at Ex. 3, ¶ 25.) 20 Additionally, Pulliam provides evidence that on the day in question, December 16, 21 two other employees scheduled for Pulliam’s shift, (id. at Ex. 29, Las Vegas Gate 22 23 24 4 Because it takes Pulliam roughly 10 minutes to get to the parking lot from her gate terminal, (dkt. no. 25, Motion for Summary Judgment, Ex. 3, Pulliam Depo., 170:19), Pulliam must have actually left her work area about 12 minutes prior to the end of her shift. 5 25 26 27 28 United argues that this statement is inadmissible for lack of personal knowledge. However, the Court finds that Van Dyke can testify as to her experiences as an employee with United, and the things she observed. Furthermore, the supervisor’s statement of “have a good day” is not hearsay because it is not offered to prove the truth of the matter asserted, it is offered as a verbal act. 6 This statement is admissible as evidence for the same reasons Van Dyke’s statement is admissible. 9 1 Schedule), also left work early (id. at Exs. 30 and 31). Another United employee testified 2 that with a certain flight he would routinely leave “five minutes before the end of our 3 shift.” (Id. at Ex. 8, De Leon Depo., 37:4-23.) Therefore, Pulliam’s evidence is sufficient 4 to establish, at least at this stage, that it was common for some employees to leave work 5 early, and that their supervisors were aware they were leaving early. Thus, viewing all 6 facts and drawing all inferences in the light most favorable to Pulliam, the Court finds 7 Pulliam demonstrates that she was performing up to United’s expectations when she 8 was leaving work early. 9 Pulliam fails, however, to establish she was performing up to United’s reasonable 10 expectations when she confronted the two United passengers. Pulliam’s only evidence 11 as to this confrontation is her own affidavit. (Dkt. no. 32, Opposition, Ex. 3, ¶ 33.) 12 Pulliam claims she did not use profanity during this confrontation but only said “don’t get 13 smart asking me questions.” (Id.) However, as discussed above, both the passengers 14 and Pulliam’s co-worker claim she used profanity. (Ex. 16, Passenger Complaint from 15 Mike Schmid; Ex. 17, Passenger Complaint from Ron Clowes; id., at Ex. 18, Robert F. 16 De Leon’s Written Statement.) More importantly, any of the above statements would 17 violate United’s Rules of Conduct. (Dkt. no. 25, Ex. 4, Rules of Conduct, Rule 41; id. at 18 Ex. 28, Nicholson Decla., ¶ 9.) 19 performing up to United’s expectations as to the confrontation with the two passengers. Therefore, Pulliam fails to establish that she was 20 The fourth element in a prima facie case for discrimination is that similarly situated 21 employees outside the plaintiff’s protected class were treated more favorably. Vasquez, 22 349 F.3d at 640 n. 5. Pulliam also meets this element as to her leaving work early 23 because, as discussed above, her evidence shows that other non-African American 24 employees left work early and were not discharged as she was. However, Pulliam fails 25 to establish that she was treated differently with respect to her exchange with the two 26 passengers. Pulliam provides no evidence that another, non-African American United 27 employee had such an exchange with United passengers and received no discipline. 28 /// 10 1 The other two elements of the prima facie case are undisputed; Pulliam is a 2 member of a protected class and she suffered an adverse employment action when she 3 was terminated. Therefore, in sum, Pulliam demonstrates a prima facie case as to her 4 being discharged for leaving work early but not for her exchange with the passengers. (2) 5 6 Legitimate, Non-Discriminatory Reasons Now the burden shifts to United to demonstrate a legitimate, non-discriminatory 7 reason for discharging Pulliam. 8 discharged Pulliam for two reasons: (1) violating its policy forbidding employees from 9 leaving work before their shift ends, and (2) using inappropriate language in a 10 Vasquez, 349 F.3d at 640. United argues that it confrontation with two United passengers, a violation of United’s Rules of Conduct. 11 First, with respect to Pulliam’s leaving work early, Defendants point out that in 12 order to leave work early an employee must fill out an exceptions form and present it to 13 United for approval, something Pulliam did not do. (Dkt. no. 37, Reply, Ex. 7, French 14 Depo., 54:12-55:23.) Furthermore, United points out that it had an employee posting at 15 the job site reminding employees of this policy, so Pulliam should have known about it. 16 (Id. at Viera Depo., 36:16-25.) Thus, United argues, Pulliam violated its policy by leaving 17 work early without completing an exceptions form, and in so doing she also violated 18 United’s Rules of Conduct. (Id. at Ex. 4. Rules of Conduct, Rule 3; dkt. no. 37, Reply, 19 Ex. 7, Chudoba-French Depo., 54:4-55:24.) The Court finds this is a legitimate non- 20 discriminatory reason for Pulliam’s termination. 21 Second, even if Pulliam did establish a prima facie case of discrimination as to 22 her confrontation with the passengers, the Court finds that United had a legitimate, non- 23 discriminatory reason for terminating her for that confrontation. As discussed above, any 24 of the statements made by Pulliam that have been offered into evidence would violate 25 United’s Rules of Conduct. (Dkt. no. 25, Ex. 4, Rules of Conduct, Rule 41; id. at Ex. 28, 26 Nicholson Decla., ¶ 9.) Thus, in sum, United provides sufficient evidence to show that 27 Hill had a legitimate, non-discriminatory basis on which to recommend Pulliam’s 28 termination. 11 (3) 1 Pretext 2 The burden now shifts to Pulliam to demonstrate that United’s proffered reasons 3 are pretextual. The Court finds Pulliam has not shown pretext. First, Pulliam claims that 4 she was terminated because of Giusti’s racial animus towards her (dkt. no. 32, 5 Opposition, 23:16-17), yet she offers no evidence that Giusti was involved in her 6 termination process. Rather, it was Hill who recommended her termination and Pulliam 7 admits that Hill did not discriminate against her on the basis of race. (Dkt. no. 25, Motion 8 for Summary Judgment, Ex. 3, Pulliam Depo., 162:24-164:4.) Pulliam then points to 9 evidence that others outside of her protected class left work early (supra at Sect. 10 II(B)(2)(b)(ii)(1)), and were not disciplined. However, it is undisputed that Hill was not 11 aware of these other employees when Hill recommended Pulliam’s discharge (id. at Ex. 12 25, ¶ 10), undermining any claim that Hill discriminated between Pulliam and these other 13 employees. While Pulliam offers sufficient evidence to show that it was common for 14 some employees to leave work early without permission from supervisors (supra at Sect. 15 II(B)(2)(b)(ii)(1)), there is no evidence that Hill knew about this practice or participated in 16 this practice. 17 employees leaving early she would have recommended their termination. 18 Additionally, United provides evidence of other employees outside Pulliam’s protected 19 class who left work early and were terminated as Pulliam was. (Dkt. no. 25, Motion for 20 Summary Judgment, Ex. 29, French Decla., ¶¶ 5, 6; id., at Ex. 22, Viera Depo., 37:12— 21 39:25; dkt. no. 57.) Therefore, the evidence before the Court demonstrates that United’s 22 proffered reasons for terminating Pulliam are credible, and therefore, not pretextual. And it is undisputed that if Hill had become aware of these other (4) 23 (Id.) Two Independent Reasons for Firing 24 As stated above, United had two independent reasons for discharging Pulliam, (1) 25 her exchange with the two United passengers, and (2) her leaving work early. However, 26 Pulliam did not establish a prima facie case as to her exchange with the two United 27 passengers. Therefore, even assuming Pulliam can show pretext as to her leaving work 28 /// 12 1 early, United still has another independent reason on which it discharged Pulliam her 2 exchange with the passengers. 3 In general, when an employer has two independent reasons for discharging an 4 employee, the employee must show that both reasons were improper. See Jaramillo v. 5 Colo. Jud. Dept., 427 F.3d 1303, 1310 (10th Cir. 2005) (“an employee must proffer 6 evidence that shows each of the employer’s justifications are pretextual”); Ghosh v. 7 Indiana Dep’t of Envtl. Mgmt., 192 F.3d 1087, 1092-93 (7th Cir. 1999) (“[w]hen the 8 defendant offers multiple reasons for its employment decision, the plaintiff must show 9 that all of the proffered reasons are pretextual in order to reverse the district court’s grant 10 of summary judgment”); Combs v. Plantation Patters, Meadowcraft, Inc., 106 F.3d 1519, 11 1538-39 (11th Cir. 1997); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1298 (D.C. Cir. 12 1998). 13 Exceptions to this rule do exist. For example, if the employer piles on a number 14 of reasons to support its employment decision, a reasonable jury could find all of the 15 reasons are suspicious even though there is evidence debunking only some of them. 16 Smith v. Chrysler Corp., 155 F.3d 799, 809 (6th Cir. 1998); Fuentes v. Perskie, 32 F.3d 17 759, 764-65 n. 7 (3rd Cir. 1994); Chapman v. AI Transp., 229 F.3d 1012, 1048-51 (11th 18 Cir. 2000). 19 summary judgment ‘only if the company has offered no other reason that, if that reason 20 stood alone (more precisely if it did not have support from the tainted reason), would 21 have caused the company to take the action of which the plaintiff is complaining.’” 22 Jarmillo, 427 F.3d at 1310 (citing Russell v. Acme-Evans Co., 51 F.3d 64, 69 (7th Cir. 23 1995)). However, the Court finds that none of these exceptions are present in this case. “Debunking one of the employer’s explanations defeats the case for 24 United did not pile on numerous unrelated reasons to support its decision to 25 discharge Pulliam, it only provided two reasons, both of which grew out of the same 26 incident on December 16, 2007. 27 recommended termination for either reason, independent of the other. (Dkt. no. 25, 28 Motion for Summary Judgment, Ex. 25, Hill Decla., ¶ 11.) Therefore, the Court finds that Furthermore, it is undisputed that Hill would have 13 1 even if Pulliam had provided evidence of pretext as to one of United’s reasons for 2 discharging her her leaving work early summary judgment is proper as to the entirety 3 of her claim (as to the Hill Incident). And because Pulliam has failed to establish a prima 4 facie case as to the Giusti Incident as well (see above), the Court grants United’s motion 5 for summary judgment as to Pullman’s Title VII discrimination claim. 3. 6 Section 1981 and NRS 613.330 7 The Court grants United’s motion for summary judgment as to Pulliam’s § 1981 8 and NRS 613.330 claims for the same reasons it grants the motion as to the Title VII 9 discrimination claim. 4. 10 Title VII Retaliation 11 To maintain a retaliation claim, a plaintiff must show (1) involvement in a 12 protected activity, (2) an adverse employment action, and (3) a causal link between the 13 two. Payne v. Norwest Corp., 113 F.3d 1079, 1080 (9th Cir. 1997). Thereafter, the 14 burden of production shifts to the employer to present legitimate reasons for the adverse 15 employment action. 16 demonstrate a genuine issue of material fact as to whether the reason advanced by the 17 employer was a pretext. See id. Only then does the case proceed beyond the summary 18 judgment stage. See id. Once the employer carries this burden, plaintiff must 19 Pulliam’s retaliation claim fails because she has not provided sufficient evidence 20 to establish a causal link between her involvement in a protected activity her complaint 21 of race discrimination against Giusti and the adverse employment action her 22 termination. 23 recommended Pulliam’s termination, undisputedly did not even know that Pulliam made 24 a complaint of race discrimination against Giusti. (Dkt. no. 25, Latoyia Hill Decla., Ex. 25 25, ¶ 13; id. at Ex. 3:199:4-18; dkt. no. 37, Giusti Depo., Ex. 3, 42:16-22.) United’s 26 investigations are kept confidential, (id. at Ex. 10, Nicholson Depo., 35:23-36:20), and it 27 is undisputed that Hill was not involved in United’s investigation of Pulliam’s 28 discrimination complaint against Giusti. (Dkt. no. 25, Latoya Hill Decla., Ex. 25 ¶ 13; id. To the contrary, the evidence provided demonstrates that Hill, who 14 1 at Ex. 28, ¶ 5.) Pulliam fails to offer any admissible evidence to dispute that Hill did not 2 know about her complaint of discrimination against Giusti.7 3 Pulliam’s only other evidence of causation is the closeness in time between her 4 discharge and her filing of a race discrimination complaint against Giusti. She filed the 5 complaint in November 2007 and was discharged two months later in January 2008. 6 “[W]hen adverse employment decisions are taken within a reasonable period of time 7 after complaints of discrimination have been made, retaliatory intent may be inferred.” 8 Passantino v. Johnson & Johnson Consumer Prods., 212 F.3d. 493, 507 (9th Cir. 2000). 9 Although there is a closeness in time present in this case, the Court finds that this fact 10 alone is insufficient to create a fact question as to causation, Anderson, 477 U.S. at 252 11 (“[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be 12 insufficient”), especially given the evidence that Hill had no knowledge of Pulliam’s 13 complaint against Giusti. 14 Furthermore, even if Pulliam could establish a causal link and therefore a prima 15 facie case of retaliation the Court finds that, as discussed above, United has presented 16 legitimate reasons for discharging Pulliam, which Pulliam has not demonstrated as being 17 pretextual. Accordingly, the Court grants United’s motion as to this claim. 5. 18 Injunctive Relief Pulliam seeks an injunction requiring United to, among other things, prevent and 19 20 remedy acts of race discrimination in its workplace. 21 insufficient evidence to establish such discriminatory acts occurred, or are occurring, at 22 /// 23 24 25 26 27 28 7 However, as Pulliam provides Pulliam has admitted that she has no information to show that Hill knew about her discrimination complaint to Giusti (dkt no. 25-3 at 199:4-18). Pulliam claims that “many people” working at McCarran International Airport informed her that they “knew about the complaint” she made against Giusti. (Dkt. no. 32, Pulliam Affidavit, ¶ 6.) However, this is inadmissible hearsay and is far too vague to create a dispute of fact as to Hill’s knowledge. Additionally, Pulliam’s statement does not clarify whether these “many people” even knew Pulliam’s complaint alleged racial discrimination. This is critical because, for purposes of a Title VII retaliation claim, a complaint against a coworker only constitutes protected activity if the complaint asserts a violation of Title VII. 42 U.S.C. § 2000e-3(a). 15 1 United, the Court finds she is not entitled to the requested injunctive relief. Therefore, 2 the Court grants United’s motion as to this claim as well. 3 III. CONCLUSION 4 Accordingly, and for good cause appearing, 5 IT IS HEREBY ORDERED that United’s Motion to Strike Affidavit of Angela 6 7 8 9 10 11 Pulliam (dkt. no. 38) is DENIED. IT IS FURTHER ORDERED that United’s Motion to Strike Declaration of Jacqueline Van Dyke (dkt. no. 39) is DENIED. IT IS FURTHER ORDERED that United’s Motion for Summary Judgment (dkt. no. 25) is GRANTED. The Court instructs the Clerk of Court to close the case. 12 13 DATED THIS 24th day of July 2012. 14 15 16 _____________________________________ ______________________________ UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 16
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