Pulsipher v. Clark County et al, No. 2:2008cv01374 - Document 78 (D. Nev. 2010)

Court Description: ORDER Denying 42 Defendants' Motion for Summary Judgment. Signed by Judge Robert C. Jones on 9/20/10. (Copies have been distributed pursuant to the NEF - EDS)
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Pulsipher v. Clark County et al Doc. 78 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 ALAN PULSIPHER, 13 ) ) ) ) ) ) ) ) ) ) 14 This case arises out of alleged race-, religion-, and gender-based employment discrimination. 15 Before the Court is Defendants’ Motion for Summary Judgment (ECF No. 42). For the reasons 16 given herein, the Court denies the motion. 17 I. 9 Plaintiff, 10 vs. 11 CLARK COUNTY et al., 12 Defendants. 2:08-cv-01374-RCJ-LRL ORDER FACTS AND PROCEDURAL HISTORY 18 Plaintiff Alan Pulsipher is a white, male member of the Church of Jesus Christ of Latter-day 19 Saints, commonly known as the “Mormon Church.” (Am. Compl. ¶ 13, ECF No. 30). He has been 20 employed by Defendant Clark County, Nevada in the Division of Juvenile Justice Services (“DJJS”) 21 for over a decade and is currently classified as Management Analyst II C-29. (Id. ¶¶ 12, 15). 22 In the late 1990s, Clark County established the DJJS Probation Officer Academy (“the 23 Academy”) within DJJS because state law required all juvenile probation officers to attend a basic 24 law enforcement academy, and sending the county’s probation officers to the police academy in 25 Carson City would have been prohibitively expensive. (Id. ¶¶ 16–18). The first cadet cycle at the Dockets.Justia.com 1 academy began in the Spring of 1999. (Id. ¶ 19). Plaintiff served as the Executive Officer for the first 2 four cycles, after which he was assigned as Commander, beginning with the Spring 2001 cycle. (Id. 3 ¶¶ 19–20). Plaintiff served as Commander through June 2006, administering a total of twelve regular 4 and special cadet cycles. (Id. ¶¶ 22–24). 5 On or about April 26, 2006, DJJS reorganized, resulting in the creation of the Professional 6 Development Unit (“PDU”). (Id. ¶ 29). Defendant Larry Carter was assigned as the Assistant 7 Director in charge of the PDU, which consisted only of Defendant Sheron Hayes and Plaintiff. (Id. 8 ¶ 30). Hayes reported to Defendant Cherie Townsend during this time period. (Id. ¶ 31).1 Soon 9 thereafter, Hayes was classified as a Principal Management Analyst C-31 and was made Plaintiff’s 10 direct supervisor. (Id. ¶ 32).2 11 Plaintiff alleges that Hayes began to treat him differently from other DJJS employees who 12 were not members of the relevant protected classes, to wit: (1) on or about November 17, 2006, 13 Hayes entered a class Plaintiff was teaching without prior notice and solicited confidential evaluations 14 of Plaintiff; (2) Hayes began giving Plaintiff little or no notice of staff meetings, although other 15 employees received notice; (3) Hayes routinely scheduled meetings based on other employees’ 16 availability and then mandated Plaintiff’s employment without ever having inquired as to his 17 availability; (4) on January 18, 2007, Hayes and Brenda Martinez, a DJJS employee in the PDU, 18 1 19 20 21 22 23 24 25 It is not clear from the AC what Townsend’s position was at this time or why Hayes reported to her instead of Carter. 2 Plaintiff alleges that Hayes was made his supervisor “despite having a poor record in her employment . . . and despite not having previously worked with the Academy.” (Id.). Plaintiff does not allege that he competed for a promotion with Hayes. The significance of this allegation is clarified in Plaintiff’s response to the present motion for summary judgment, where Plaintiff alleges that Clark County has a custom of transferring and/or promoting poor employees who threaten race discrimination lawsuits (such as Hayes) in order to placate them, and that Hayes’s transfer resulted in the transfer of employment duties from Plaintiff to Hayes in violation of the Equal Protection Clause. Page 2 of 14 1 confiscated four Academy logbooks from Plaintiff’s office while he was on vacation that were not 2 needed for work purposes but which contained documentation of Hayes’s harassment of Plaintiff; (5) 3 Hayes directed Martinez to maintain these logbooks, which were critical to Plaintiff’s performance, 4 at a location away from the Academy, making performance of his duties more difficult; (6) on June 5 8, 2007, Hayes denied Plaintiff permission to attend the funeral of a co-worker without applying for 6 leave, while permitting others (including herself) to attend without taking leave; (7) on or about June 7 26, 2007, Hayes began demanding advance notice from Plaintiff any time he would leave the campus, 8 while not requiring the same of other employees; (8) during the Fall 2006 Academy, Hayes 9 maintained contact with one or more of Plaintiff’s problem students, encouraging misconduct in his 10 classes in an attempt to bait him into a work violation; (9) Hayes made derogatory statements about 11 Plaintiff’s race and religion; and (10) Hayes frequently denied Plaintiff’s requests to leave campus, 12 even for work-related matters, requiring him to take paid leave to do so. (Id. ¶¶ 33–49, 52). In his 13 opposition to the present motion, Plaintiff describes the alleged disparate treatment as “death by a 14 thousand cuts.” (Resp. 4, ECF No. 49). This treatment allegedly caused Plaintiff to alter his working 15 conditions in a time-consuming and disruptive way, requiring him to document every interaction and 16 every situation that could be misconstrued by Hayes, in order to defend himself. (Am. Compl. 17 ¶¶ 50–51). It also allegedly resulted in Plaintiff’s being passed over for a promotion for which he was 18 otherwise qualified. (Id. ¶ 53). 19 In or about June 2006, Plaintiff submitted an application for reclassification to Principal 20 Management Analyst. (Id. ¶ 54). Because of Plaintiff’s race, gender, and religion, his application was 21 never even processed, despite his qualifications for the position and his diligence in monitoring the 22 status of his application. (Id. ¶¶ 55–57). 23 Plaintiff sued Clark County, DJJS, Townsend, Carter, and Hayes in this Court for violations 24 of federal and state anti-discrimination laws, invoking the Court’s jurisdiction under 42 U.S.C. § 25 Page 3 of 14 1 1983. (See Compl. ¶ 2, ECF No. 1). The Amended Complaint (“AC”) omitted DJJS as a defendant 2 and identified the jurisdictional basis of the complaint as 42 U.S.C. § 2000e-2. (See Am. Compl. ¶ 3 2). Either statute supports federal jurisdiction, and the Court therefore also has jurisdiction over the 4 state law claims pursuant to 28 U.S.C. § 1367. The AC lists four causes of action: (1) Violation of 5 42 U.S.C. § 2000e-2 (Clark County); (2) Hostile Workplace Environment (Clark County); (3) 6 Violation of the Equal Protection Clause of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983 7 (Hayes, Carter, and Townsend); and (4) Violation of Nevada Revised Statutes (“NRS”) section 8 613.330 (All Defendants). Defendants have moved for summary judgment against all claims. 9 II. SUMMARY JUDGMENT STANDARD 10 The Federal Rules of Civil Procedure provide for summary adjudication when “the 11 pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, 12 if any, show that there is no genuine issue as to any material fact and that the party is entitled to a 13 judgment as a matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect the 14 outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as 15 to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for 16 the nonmoving party. See id. “Summary judgment is inappropriate if reasonable jurors, drawing all 17 inferences in favor of the nonmoving party, could return a verdict in the nonmoving party’s favor.” 18 Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States v. 19 Shumway, 199 F.3d 1093, 1103–04 (9th Cir. 1999)). A principal purpose of summary judgment is 20 “to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 21 323–24 (1986). 22 In determining summary judgment, a court applies a burden-shifting analysis: 23 24 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 25 Page 4 of 14 1 initial burden of establishing the absence of a genuine issue of fact on each issue material to its case. 2 C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations 3 omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, 4 the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential 5 element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving party failed to 6 make a showing sufficient to establish an element essential to that party’s case on which that party 7 will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24. If the moving party 8 fails to meet its initial burden, summary judgment must be denied and the court need not consider the 9 nonmoving party’s evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60 (1970). 10 If the moving party satisfies its initial burden, the burden then shifts to the opposing party to 11 establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio 12 Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing party 13 need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed 14 factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the 15 truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 16 1987). In other words, the nonmoving party cannot avoid summary judgment by relying solely on 17 conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 18 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the 19 pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for 20 trial. See Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324. 21 At summary judgment, a court’s function is not to weigh the evidence and determine the truth 22 but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. The 23 evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn in his 24 25 Page 5 of 14 1 favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable or is not 2 significantly probative, summary judgment may be granted. See id. at 249–50. 3 III. ANALYSIS 4 A. 5 Title VII of the Civil Rights Act of 1964 limits the jurisdiction of federal courts to those Title VII of the Civil Rights Act of 1964 (First and Second Causes of Action) 6 claims that the EEOC has had an opportunity to examine. The scope of federal jurisdiction over 7 a complaint under Title VII is therefore coextensive with the claims administratively exhausted with 8 the EEOC, including claims filed but which the EEOC fails to adjudicate or investigate: 9 10 11 To establish subject matter jurisdiction over his Title VII . . . claim, [the plaintiff] must have exhausted his administrative remedies by filing a timely charge with the EEOC. This affords the agency an opportunity to investigate the charge. Subject matter jurisdiction extends to all claims of discrimination that fall within the scope of the EEOC’s actual investigation or an EEOC investigation that could reasonably be expected to grow out of the charge. 12 Vasquez v. County of L.A., 349 F.3d 634, 644 (9th Cir. 2003) (citing 42 U.S.C. § 2000e13 5(b); B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099–1100 (9th Cir. 2002)) (footnotes 14 omitted). 15 In an affidavit attached to his opposition to the present motion, Plaintiff attests that he filed 16 a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) and 17 received a right-to-sue letter, (Pulsipher Aff. ¶ 79, ECF No. 50), but he does not attach any such 18 letter to any of his pleadings. Nor does he attest to the scope of the alleged right-to-sue letter or its 19 date, facts which are dispositive of his ability to sue.3 Because such a letter defines the contours of 20 the Court’s jurisdiction to hear Title VII claims, the Court simply cannot entertain Title VII claims 21 without one. It is Plaintiff’s burden to overcome the presumption against federal jurisdiction. 22 23 24 25 3 Plaintiff filed the Complaint on October 10, 2008. If he received his right-to-sue letter more than ninety (90) days before that date, i.e., before July 12, 2008, his Title VII claims are lost. See 42 U.S.C. § 2000e-5(f)(1). Page 6 of 14 1 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S., 375, 377 (1994). At oral argument, Plaintiff 2 produced his EEOC intake questionnaire and right-to-sue letter, which were entered into the record. 3 The letter was mailed to Plaintiff on July 14, 2008, making his Complaint timely. (See Right to Sue 4 Letter, ECF No. 77, at 6). In the EEOC questionnaire, Plaintiff checked boxes for race, sex, age, 5 religion, and retaliation, and he complained of “Harrassment [sic] - Hostile Work Environment.” (See 6 id., ECF No. 77, at 3). The Court therefore has jurisdiction over the Title VII claims. 7 B. Equal Protection Pursuant to 42 U.S.C. § 1983 8 1. The Individual Defendants 9 In the Ninth Circuit, a plaintiff may sue under both Title VII and the Fourteenth Amendment 10 (via § 1983) for illegal discrimination in employment, even when a § 1983 claim is not based on 11 substantive rights distinct from those protected by Title VII. See Roberts v. Coll. of the Desert, 870 12 F.2d 1411, 1415 (9th Cir. 1988).4 Therefore, the § 1983 claims are not superfluous. Plaintiff’s 13 allegations under this cause of action are not different from his allegations relating to his Title VII and 14 state law discrimination claims. The merits of the § 1983 claims, which parallel the Title VII and state 15 law discrimination claims, are addressed in Part III.C, infra. 16 2. 17 Plaintiff has pled this cause of action “As to Defendants Hayes, Carter and Townsend Only.” 18 (Am. Compl. 9). In his opposition to the present motion, however, Plaintiff alleges that Clark County 19 has a custom of transferring and/or promoting poor employees who threaten race discrimination 20 lawsuits (such as Hayes) in order to placate them, and that Hayes’s transfer resulted in the transfer 21 of employment duties from Plaintiff to Hayes in violation of the Equal Protection Clause. Plaintiff 22 makes this argument in order to save his § 1983 claim against Clark County’s argument that he has Clark County 23 4 24 25 There is a circuit split on this issue. See Moche v. City Univ. of N.Y., 781 F. Supp. 160, 168 (E.D.N.Y. 1992). Page 7 of 14 1 alleged no discriminatory custom by the county. Plaintiff’s allegations are likely insufficient to state 2 a claim under the Equal Protection Clause, because Plaintiff alleges not that the transfer of 3 employment duties from Plaintiff to Hayes was motivated by an intent or purpose to discriminate 4 against Plaintiff, see Vill. of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 264–65 5 (1977) (citing Washington v. Davis, 426 U.S. 229 (1976)), but only by a motivation to placate a poor 6 employee (Hayes) who had threatened to sue the employer based on unrelated racial discrimination. 7 Although these facts plausibly support a disparate impact claim under Title VII, see 42 U.S.C. § 8 2000e-2(k), such a claim does not lie under the Fourteenth Amendment. See Vill. of Arlington 9 Heights, 429 U.S. at 264–65. Plaintiff did not present any disparate impact claim to the EEOC. 10 Moreover, Plaintiff does not name Clark County as a Defendant with respect to the § 1983 claim in 11 the first instance. (See Am. Compl. 9). Nor do any of the twenty paragraphs of allegations in the AC 12 under this cause of action put Clark County on notice of a § 1983 claim against it. Those allegations 13 repeatedly name only Hayes, Carter, and Townsend individually. (See id. ¶¶ 80–99). 14 C. 15 Nevada’s unlawful employment practices statute makes it unlawful, inter alia, for an employer 16 17 NRS 613.330 to: 20 fail or refuse to hire or to discharge any person, or otherwise to discriminate against any person with respect to the person’s compensation, terms, conditions or privileges of employment, because of his or her race, color, religion, sex, sexual orientation, age, disability or national origin; or [t]o limit, segregate or classify an employee in a way which would deprive or tend to deprive the employee of employment opportunities or otherwise adversely affect his or her status as an employee, because of his or her race, color, religion, sex, sexual orientation, age, disability or national origin. 21 Nev. Rev. Stat. § 613.330(1)(a)–(b). Like Title VII, the parallel Nevada statute requires exhaustion 22 of administrative remedies by filing a complaint with the Nevada Equal Rights Commission (“NERC”) 23 before an action can be commenced in court. Pope v. Motel 6, 114 P.3d 277, 280 (Nev. 2005) (citing 18 19 24 25 Page 8 of 14 1 Nev. Rev. Stat. § 613.420).5 2 1. 3 The standards for proving discrimination under the state statute mirror the standards under 4 Title VII. See Apeceche v. White Pine Cnty., 615 P.2d 975, 977 (Nev. 1980) (“NRS 613.330(1) is 5 almost identical to s 703(a)(1) of Title VII of the Civil Rights Act of 1964.”). 6 7 8 9 Employment Discrimination In cases involving an employer’s isolated decision to discharge or to alter the terms of employment of an individual employee, the focus of the inquiry is whether the employer is treating some people less favorable [sic] than others because of their race, religion, sex, or national origin. The employee carries the initial burden of establishing a prima facie case of discrimination by proving (1) she is a member of a protected class, (2) she is qualified for the job, (3) she is satisfying the job requirements, (4) she was discharged, and (5) the employer assigned others to do the same work. 10 .... 11 12 Once a prima facie case of discrimination is established, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for its actions. 13 Id. (citations omitted). This mirrors the federal standards: “[A] plaintiff must show that (1) he 14 belongs to a protected class; (2) he was qualified for the position; (3) he was subject to an adverse 15 employment action; and (4) similarly situated individuals outside his protected class were treated 16 more favorably.” Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1123 (9th Cir. 2000) 17 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). 18 19 First, Plaintiff has established by affidavit that he is a member of three protected classes: Caucasian, male, and a member of the Church of Jesus Christ of Latter-day Saints. (See Pulsipher Aff. 20 21 5 24 In states such as Nevada, where the EEOC has a work-sharing agreement with the state equal rights authority, see 29 C.F.R. § 1601.74(a) (listing NERC’s predecessor, the Nevada Commission on Equal Rights of Citizens), exhaustion of administrative remedies with either entity constitutes exhaustion with both entities. Puryear v. County of Roanoke, 214 F.3d 514, 518–19 (4th Cir. 2000); see also Green v. L.A. County Superintendent of Sch., 883 F.2d 1472, 1476 (9th Cir. 1989). 25 Page 9 of 14 22 23 1 ¶ 3). Second, he has provided affidavit testimony and other documentary evidence indicating his 2 supervisory qualifications for his current position, Management Analyst II, and the position he applied 3 for, Principal Management Analyst. (See id. ¶¶ 15–16). 4 Third, Plaintiff attests to party admissions by Hayes, relayed to Plaintiff through an African- 5 American male co-worker, Jerome Simon, that Hayes “hated white Mormon males.” (See id. ¶ 12). 6 Plaintiff’s attestation to these comments is hearsay, because although Hayes’s comments to Simon 7 are non-hearsay party admissions, see Fed. R. Evid. 801(d)(2), Simon’s report of the comments to 8 Plaintiff is a second level of hearsay that is not saved by any exception, see Fed. R. Evid. 803. 9 However, Simon himself testified to similar comments by Hayes. For example, Hayes once accused 10 Simon of “being loyal to the whites.” (Simon Dep. 30:10–11, Dec. 15, 2009, ECF No. 53-1). He also 11 testified that Hayes stated to him that whites and Mormons stick together, so blacks should also stick 12 together. (See id. 32–33). Simon interpreted her comments as a threat, because Hayes could 13 terminate his employment through her control of funding from the County. (See id. 35–36). Patricia 14 Black also testified as to racist and sexist comments made by Hayes against white men, wherein 15 Hayes stated that “she hated all of these white devils” and that “[n]one of them are any good.” (Black 16 Dep. 11:20, 22, Feb. 23, 2010, ECF No. 53). Black testified that she was offended, and that she told 17 Hayes so, because Black had a Caucasian son-in-law and grandson. (See id. 12:1–12). Elonda Potter 18 testified at her deposition that Hayes had several times pointed to the back of her hand to indicate her 19 skin color in a context that implied that African-Americans should stick together. (Potter Dep. 38–39, 20 Dec. 17, 2009, ECF No. 53-2). Cathryn Hale testified at her deposition that she had heard Hayes use 21 the phrase “Mormon Mafia” “[a] few” times, and that she interpreted this to be meant in a derogatory 22 way. (Hale Dep. 40:22–41:3, Feb. 11, 2010, ECF No. 53-9). Hale referred to Hayes as “abusive,” 23 “controlling,” and “manipulative,” and she opined that “[a]ny environment that she is within is a 24 hostile environment.” (Id. 41:21–23). 25 This is sufficient evidence of Hayes’s motivation to Page 10 of 14 1 discriminate against Plaintiff. 2 There is an additional issue, however. Hayes is the only Defendant for whom Plaintiff 3 provides evidence of discriminatory intent or purpose, but Hayes was not the hiring authority for the 4 promotion that Plaintiff was denied. Plaintiff, however attests that Plaintiff improperly influenced 5 Janet Witt, the DJJS Manager who made the promotion decision, when Witt asked Hayes for her 6 input. (See Pulsipher Dep. ¶¶ 57–58). Under the “cat’s paw” theory, this set of facts can support a 7 discrimination claim under Title VII. See Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir. 2007). 8 The Ninth Circuit has stated that the theory extends beyond cases where a decision-maker simply 9 “rubber stamps” another’s recommendations: 10 11 12 We hold that if a subordinate, in response to a plaintiff’s protected activity, sets in motion a proceeding by an independent decisionmaker that leads to an adverse employment action, the subordinate’s bias is imputed to the employer if the plaintiff can prove that the allegedly independent adverse employment decision was not actually independent because the biased subordinate influenced or was involved in the decision or decisionmaking process. 13 Id.; see id. at 1182–83 (“Title VII may still be violated where the ultimate decision-maker, lacking 14 individual discriminatory intent, takes an adverse employment action in reliance on factors affected 15 by another decision-maker’s discriminatory animus.” (quoting Galdamez v. Potter, 415 F.3d 1015, 16 1026 n.9 (9th Cir. 2005))). Plaintiff has provided sufficient evidence of such facts to survive 17 summary judgment. 18 Fourth, Plaintiff has shown that persons outside of his protected classes were treated more 19 favorably. He attests that Hayes herself, for example, was reclassified to Principal Management 20 Analyst at the Academy, despite her total lack of experience at the Academy and her alleged past 21 poor performance. (See Pulsipher Dep. ¶¶ 10, 50–51). Plaintiff also attests to many instances of 22 disparate treatment by Hayes that his non-Caucasian, non-male, and non-Mormon co-workers were 23 not subject to. (See id., passim). 24 25 Page 11 of 14 1 The burden now shifts to Defendants to show a legitimate, non-discriminatory reason for the 2 action. Defendants argue that Plaintiff’s perceptions are not sufficient to allege disparate treatment. 3 But Plaintiff has provided evidence of specific, articulable instances of alleged discrimination and 4 discriminatory motivation that Defendants have not rebutted. Defendants also argue that the alleged 5 derogatory comments by Hayes are time-barred, because Plaintiff did not file an EEOC complaint 6 soon enough after they were made. But Defendants simply conflate the statute of limitations with 7 the admissibility of evidence. Defendants cite no law indicating that evidence of discriminatory 8 motive is inadmissible simply because a plaintiff would be time-barred under Title VII from presenting 9 claims based on employment actions that occurred at the same time as the comments showing 10 discriminatory motive. The date of the wrongful event (or discovery of the event) controls the 11 limitations period, not the earliest date of any particular evidence relevant to the wrongful event. 12 Defendants then note that Hayes disputes making the derogatory comments. At her deposition, 13 Hayes was only asked about her alleged animus against Plaintiff due to his religion, not due to his race 14 or gender, and she responded that she harbored no such attitudes and didn’t even know Plaintiff was 15 a Mormon until after the charges were filed against her. (See Hayes Dep. 230–31, Dec. 7, 2009, ECF 16 No. 53-11). This is a matter of credibility and weight of evidence. At the summary judgment stage, 17 the Court only asks whether there is sufficient evidence for a reasonable jury to decide the question 18 for the non-moving party. Plaintiff has provided enough evidence. Defendants also argue that Hayes 19 did not have decision-making authority, but as noted above, the cat’s paw doctrine applies here. Nor 20 are the allegedly derogatory comments “stray” or isolated. Several of Hayes’s co-workers have 21 testified as to comments she has made in the workplace showing discriminatory animus. 22 Still, Defendants argue that Plaintiff was not qualified for the reclassification, and that this 23 was, of course, a legitimate reason not to approve it or to forward the application for processing. 24 Defendant Townsend testified that she was originally supportive of Plaintiff’s request for 25 Page 12 of 14 1 reclassification, but that when she asked Janet Witt at DJJS Human Resources whether Plaintiff’s 2 current position met the requirements for reclassification, Witt responded that it did not, particularly 3 with regard to supervisory responsibilities. (See Toewnsend Dep. 39:5–25, Feb. 17, 2010, ECF No. 4 42-8). But Plaintiff attests that Hayes, motivated by improper reasons, wrongly influenced Witt in 5 her conclusion after Townsend and Witt themselves solicited Hayes’s opinion. (See Pulisipher Dep. 6 ¶¶ 57–58). Plaintiff attests that Townsend permitted Hayes to opine on his application even after he 7 had filed a hostile work environment complaint against Hayes. (See id. ¶ 56). This is sufficient 8 evidence to show that the evaluation of Plaintiff’s application and qualifications was tainted by 9 Hayes’s wrongful motivation. In light of this, Defendants have not shown a legitimate, 10 nondiscriminatory reason for the failure to promote Plaintiff, or at least to forward his application, 11 such that a reasonable jury could not find for him. 12 13 The Court therefore denies summary judgment on the § 1983 discrimination claims, as well as on the discrimination claims under Title VII and state law. 14 2. 15 “To make a prima facie case of a hostile work environment, a person must show Hostile Work Environment 16 ‘that: (1) she was subjected to verbal or physical conduct of a sexual nature, (2) this conduct was 17 unwelcome, and (3) the conduct was sufficiently severe or pervasive to alter the conditions of the 18 victim’s employment and create an abusive working environment.’” Craig v. M&O Agencies, 19 Inc., 496 F.3d 1047, 1055 (9th Cir. 2007) (quoting Fuller v. City of Oakland, 47 F.3d 1522, 1527 20 (9th Cir.1995) (internal quotation marks omitted)). The elements of a claim based on race are the 21 same, but the verbal or physical conduct must be “based on [one’s] race.” Surell, 518 F.3d at 1108. 22 Plaintiff alleges Clark County created a hostile work environment because he was subjected to 23 /// 24 /// 25 Page 13 of 14 1 Hayes’s verbal abuse and mistreatment. (Am. Compl. ¶ 73). Plaintiff alleges the abusive treatment 2 was motivated by discriminatory attitudes, and his allegations are supported by ample evidence, as 3 recounted, supra. 4 5 6 CONCLUSION IT IS HEREBY ORDERED that the Motion for Summary Judgment (ECF No. 42) is DENIED. 7 IT IS SO ORDERED. 8 DATED: This 20th day of September, 2010. 9 10 11 12 ___________________________________ ROBERT C. JONES United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 14 of 14