Opinion
Case No. 2:08-cv-01399-MMD-VCF
02-26-2013
MICHAEL J. SCALZI, Plaintiff, v. CITY OF NORTH LAS VEGAS, Defendant.
ORDER
(Def.'s Motion for Summary Judgment
- dkt. no. 84;
Plf.'s Motion for Summary Judgment
- dkt. no. 87)
I. SUMMARY
Before the Court are the competing summary judgment motions of Defendant City of North Las Vegas and Plaintiff Michael J. Scalzi. (See dkt. nos. 84 and 87.)
II. BACKGROUND
Scalzi brought this action challenging as discriminatory the City of North Las Vegas's ("City") failure to promote him for a senior position he applied for and challenging his subsequent termination. Before describing the underlying facts giving rise to Scalzi's action, a brief summary of the City's governance structure is warranted.
The City is governed through a five-member City Council that establishes the City's general policies. The Council hires a City Manager charged with operating the City on a day-to-day basis. The City Manager appoints on an at-will basis various assistants, department directors, and assistant directors. Among these positions is the Director of Human Resources, which "leads the Human Resources Department in all areas, including recruitment and selection, compensation and classification, labor and employee relations, training and development, safety and worker's compensation." (Dkt. no. 85-A.)
In early 2005, Scalzi applied for the open Director of Human Resources position, but then-City Manager Gregory Rose selected another male individual instead. On December 5, 2005, Rose hired Scalzi as the Labor Relations Manager tasked to "manage, supervise, and coordinate the labor relations function for the City and perform related duties as necessary." (Dkt. nos. 85-D and 85-E.) At the time of his selection as the Labor Relations Manager, Scalzi had no public sector human resources experience.
In 2006, the Director of Human Resources resigned, and the City Manager named Scalzi as the Acting Director while a nationwide executive recruitment was conducted by an outside search firm. Twelve (12) candidates were forwarded to the City for consideration, and two were selected as final candidates after interviews. Scalzi was one of the finalists, along with Joyce Lira. Lira was ultimately selected for the position. Scalzi alleges that he failed to receive the position on account of his male gender, and accuses Lira of being less qualified than he.
Eight weeks into Lira's hiring, Scalzi was reclassified from Labor Relations Manager to Chief Labor Relations Manager, and received a pay increase. (See dkt. no. 86-H.) The City alleges, however, that Scalzi began to experience difficulty in performing his job functions, and was the subject of complaints from staff regarding unprofessional behavior. Scalzi disputes this fact, and challenges Lira's characterization of his performance. In support of this allegation, the City appends a letter from an outside team-building consultant noting that Scalzi did not promote the human resources department's goals of teamwork and professionalism, and recommending that he "be held accountable for management expectations of behavior that support teamwork and communication" as well as "behaviors that demonstrate impartiality and professionalism and behaviors that demonstrate a desire to help resolve the issues within the organization." (See dkt. no. 86-J.)
On June 14, 2007, an official from Teamsters Local Union No. 14 wrote to Lira informing the City that due to unprofessional conduct, the union would no longer recognize Scalzi as the City's designee and noted that the union believed Scalzi "undermined the actions you [Lira] and I agreed to take" and thereby "called his credibility into question with this Local Union." (Dkt. no. 86-K.) On June 26, 2007, Lira wrote to Scalzi formally notifying him that he was suspended for two days without pay. (Dkt. no. 86-L.) Lira noted a number of reasons for the suspension, including complaints about Scalzi from staff, insubordinate behavior, and failure to resolve grievances with the Teamsters. The letter was intended as a "last chance," and informed Scalzi that "[f]ailure to meet the expectations outlined [in the letter] will result in your immediate dismissal from the City of North Las Vegas." (Id. at 2.) Scalzi failed to acknowledge and accept the "last chance" letter, and was terminated the following day. (Dkt. no. 86-M.)
On July 19, 2007, Scalzi completed a charge against the City of North Las Vegas with the Nevada Equal Rights Commission, alleging sex and age discrimination as well as retaliation. (Dkt. no. 86-N.)
Thereafter, Scalzi commenced this action on September 18, 2008, in the Eighth Judicial District Court of Clark County, Nevada. (Dkt. no. 1-1.) The City removed the case to this Court on October 15, 2008, and answered the Complaint the same day. (See dkt. nos. 1 and 2.) Scalzi filed his Amended Complaint on May 13, 2009. Upon City's Motion, the Court dismissed Scalzi's claim for violation of NRS § 281.645, but ruled that Scalzi stated a claim for sex discrimination and retaliation. (Dkt. no. 32.) Scalzi subsequently filed a Second Amended Complaint ("SAC") on February 19, 2010, alleging one claim of gender discrimination in violation of Title VII of the Civil Rights Act of 1964 and re-alleging his NRS § 281.645 claim. (Dkt. no. 50.) The City answered, and filed a counterclaim against Scalzi for breach of his duty of loyalty. (Dkt. no. 54.)
Upon the close of discovery, both Scalzi and the City timely filed competing Motions for Summary Judgment. (Dkt. nos. 84 and 87.)
III. LEGAL STANDARD
The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits "show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is "genuine" if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the nonmoving party and a dispute is "material" if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where reasonable minds could differ on the material facts at issue, however, summary judgment is not appropriate. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). "The amount of evidence necessary to raise a genuine issue of material fact is enough 'to require a jury or judge to resolve the parties' differing versions of the truth at trial.'" Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts and draws all inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).
The moving party bears the burden of showing that there are no genuine issues of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). "In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). Once the moving party satisfies Rule 56's requirements, the burden shifts to the party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. The nonmoving party "may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists," Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and "must do more than simply show that there is some metaphysical doubt as to the material facts." Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (internal citations omitted). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient." Anderson, 477 U.S. at 252.
Further, "when parties submit cross-motions for summary judgment, '[e]ach motion must be considered on its own merits.'" Fair Hous. Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (quoting William W. Schwarzer, et al., The Analysis and Decision of Summary Judgment Motions, 139 F.R.D. 441, 499 (Feb. 1992) (citations omitted). "In fulfilling its duty to review each cross-motion separately, the court must review the evidence submitted in support of each cross-motion." Id.
IV. DISCUSSION
The summary judgment motions before this Court relate only to Scalzi's gender discrimination claim, Scalzi's state whistleblower claim, and the City's breach of the duty of loyalty counterclaim. In his Response to the City's Motion, Scalzi consented to dismissal of his Title VII retaliation. The Court discusses each in turn.
Curiously, Scalzi's Reply in support of his Motion for Summary Judgment argues that the City failed to hire him because of his whistleblowing activities(see dkt. no. 100 at 4), a claim he directly refused to pursue in his Response to the City's Motion (see dkt. no. 97 at 15-16). He does not seek summary judgment on any retaliation (see generally dkt. no. 87), and the Court does not address them.
A. Title VII Sex Discrimination
Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). "A plaintiff in a Title VII case must establish a prima facie case of discrimination." Cordova v. State Farm Ins. Cos., 124 F.3d 1145, 1148 (9th Cir. 1997). "If the plaintiff succeeds in doing so, then the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its employment decision." Id. "If the defendant provides such a reason, then in order to prevail, the plaintiff must demonstrate that this reason is pretextual." Id.
1. Prima Facie Case
In order to establish a prima facie case of gender discrimination, the plaintiff must produce evidence that "give[s] rise to an inference of unlawful discrimination." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). Where, as here, no evidence of direct discriminatory intent is presented, a plaintiff may create a presumption of discriminatory intent through the factors set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994) (citation omitted). The four prong McDonnell Douglas test requires that a plaintiff show "that (1) she belongs to a protected class; (2) she applied for and was qualified for the position she was denied; (3) she was rejected despite her qualifications; and (4) the employer filled the position with an employee not of plaintiff's class, or continued to consider other applicants whose qualifications were comparable to plaintiff's after rejecting plaintiff." Dominguez-Curry v. Nev. Transp. Dept., 424 F.3d 1027, 1037 (9th Cir. 2005) (citing McDonnell Douglas Corp., 411 U.S. at 802)). "The requisite degree of proof necessary to establish a prima facie case for Title VII . . . on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence." Id.; see also Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1111 (9th Cir. 1991) ("[T]he amount [of evidence] that must be produced in order to create a prima facie case is 'very little.'").
Although the evidence is scarce, Scalzi provides enough to make a prima facie showing of discrimination. He belongs to a protected class, he applied for and was denied a position he sought, he was qualified for the position by virtue of his status as a finalist in the selection process, and the position was filled by an individual not a member of his class. The City raises a number of arguments that seek to attack this prima facie case, including the City's previous hiring of a male, various statements about Scalzi's lower qualifications as against Lira, and his status as a finalist that demonstrates a lack of discriminatory treatment. Nevertheless, Scalzi satisfies the minimal showing required at this stage of the Title VII analysis.
2. Nondiscriminatory Justification
The City provides a number of legitimate nondiscriminatory reasons for their decision not to hire Scalzi and their decision to terminate him. First, the City provides evidence demonstrating that City officials viewed Lira as more qualified than Scalzi for the open position. City Manager Rose testified that he chose Lira because of her strong human resources experience in the public sector, her "maturity of outlook," and her non-confrontational approach to collective bargaining. (Dkt. no. 85-A at ¶ 7.) With respect to Scalzi's termination, the City provides ample evidence documenting Scalzi's poor performance after Lira's hiring, including evaluations of an independent consultant, a letter from the Teamsters Local describing his poor performance, and his failure to acknowledge his "last chance" letter. Thus, the presumption of unlawful discrimination "simply drops out of the picture," St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993), and Scalzi must provide "specific, substantial evidence of pretext," Wallis, 26 F.3d at 890.
3. Pretext
Scalzi brings no specific and substantial evidence of pretext to raise a genuine issue of material fact. With respect to the City's failure to hire him for the Director position, Scalzi alleges that Lira was unqualified for the position, and appends testimony from Assistant City Manager Samuel Chambers where Chambers describes how some of Lira's qualifications may be subjected to scrutiny. Scalzi also offers testimony from Chambers where Chambers described Scalzi as a qualified employee prior to his termination and contesting claims made by the City about his unqualified conduct. Lastly, Scalzi lists in his briefings a number of accomplishments purportedly showing his strong employment record.
The Court notes that this requirement applies to circumstantial evidence, not to direct evidence. See Dominguez-Curry, 424 F.3d at 1038 (holding that specific and substantial requirement does not apply where discrimination plaintiff brought forth direct evidence of discriminatory animus). Scalzi's claim proceeds on the basis of circumstantial evidence, as he does not present any direct evidence of gender-bias in favor of female City employees.
With respect to his failed application, Scalzi's pretext argument fails because he provides his own subjective assessment of the qualifications of the two final candidates. See Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996) ("[A]n employee's subjective personal judgments of her competence alone do not raise a genuine issue of material fact."). Scalzi attempts to give his subjective opinion an air of objectivity by pointing to Chambers' testimony, but inadvertently does more to harm his case than support it. While Chambers testified in his deposition that he believed Scalzi to be a strong labor relations manager (see dkt. no. 91 at 26-29), his arguments comparing himself to Lira only represent his own opinions as to the comparative qualifications of the two finalists. Chambers did raise questions over Lira's qualifications when viewing, for the first time, additional evidence provided to him regarding the nature of Lira's previous employment. (See dkt. no. 91 at 90:4-94:21.) But even assuming the veracity of the claims made by Scalzi, merely because the interviewing panel (and, for that matter, the independent recruiting agency) failed to appreciate potential issues with Lira's qualifications does not establish discrimination. Indeed, it does precisely the opposite: by Scalzi's logic, the City thought it was hiring a better candidate than it actually hired. Were this an instance of discrimination, Chambers and his peers would have known that Lira was unqualified. But this is not Scalzi's argument.
Scalzi alleges that the independent search firm indicated to Rose that Lira might not meet all of the requirements for the position, and alleges that Rose intentionally withheld his reservations about Lira's qualifications from others. However, Scalzi fails to point the Court to any evidence supporting these assertions. Even were they true, Scalzi does not connect these actions to any circumstantial evidence of discrimination. Without more, Scalzi's assertions in his briefings cannot create a genuine issue of fact.
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Further, Scalzi fails to present any evidence to challenge the strong inferences of nondiscrimination arising from the fact that the City had previously hired a male for precisely this same position, or from the fact that Scalzi himself was given the position on an interim basis, or from the additional fact that he received a beneficial reclassification shortly after Lira's hiring. See Bradley, 104 F.3d at 270-71 (holding that "where the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive"). Scalzi is entitled to call the City's decision to hire Lira a poor one, but the undisputed facts before the Court do not entitle him to a judgment that declares the City's decision a discriminatory one.
Scalzi also challenges his termination, but again fails to raise a genuine issue of material fact. He argues that he performed his job duties effectively, and appends deposition testimony from Chambers corroborating his arguments. However, he fails to raise any question of discrimination, and fails to rebut the evidence provided by the City of his unsatisfactory job performance. Even were the Court to ignore the City's stated reasons for termination, and to credit Scalzi as an effective Labor Relations Manager, summary judgment for the City would still be appropriate. Scalzi was an at-will employee, and the City's decision to terminate him was lawful in the absence of any discrimination, which Scalzi cannot prove. Scalzi has not raised any specific or substantial evidence of a pretext. Therefore, the City's request for judgment on Scalzi's Title VII is granted.
B. NRS § 281.641 Whistle Blower Claim
Scalzi also alleges that his termination violated NRS § 281.641, which protects state and local employees from adverse action resulting from their disclosure of improper government action by establishing a process for hearing whistleblower claims. Scalzi argues that the City failed to establish this procedure in contravention of NRS § 281.641. The statute provides that:
1. A local government shall, by ordinance, establish procedures for hearing an appeal from a local governmental officer or employee who:NRS § 281.641. The statute does not provide, however, for a cause of action to challenge a city's failure to enact these procedures. Scalzi only argues that the City's failure to comply with the statute provides this Court jurisdiction over his whistleblower claims. However, the statute does not protect whistleblowing activity; it merely obliges local governments to create a process to hearing claims arising out of whistleblowing activity. By the statute's own terms, Scalzi cannot vindicate any violations of his own rights relating to whistleblowing conduct via this statute. Scalzi has consented to the dismissal of his retaliation claim, and has not raised a common law tort for retaliatory discharge. See Hansen v. Harrah's, 675 P.2d 394, 396-97 (Nev. 1984) (recognizing retaliatory discharge tort); Wiltsie v. Baby Grand Corp., 774 P.2d 432, 433 (Nev. 1989) (describing requirements for retaliatory discharge).
(a) Disclosed information concerning improper governmental action; and2. An ordinance adopted pursuant to subsection 1 must:
(b) Believes that as a result of that disclosure, a reprisal or retaliatory action has been taken against the local governmental officer or employee, to determine whether a reprisal or retaliatory action has been taken against the local governmental officer or employee. The procedures must allow a local governmental officer or employee to file an appeal not later than 2 years after the information is disclosed and require the local governmental officer or employee who desires to file an appeal to file the appeal within 60 days after the alleged reprisal or retaliatory action was taken against the local governmental officer or employee.
(a) Prescribe the required contents of an appeal;
(b) Provide for the designation or appointment of hearing officers to hear such appeals; and
(c) Provide that if a hearing officer determines that the action taken was a reprisal or retaliatory action, the hearing officer may issue an order directing the proper person to desist and refrain from engaging in such action.
Even were the statute to provide a private right of action for an employee against a municipality for failing to create these procedures, Scalzi presents no evidence that he disclosed evidence of government misconduct or that he complained of adverse employment conduct as a result of this whistleblowing activity to the City. Simply put, Scalzi offered no evidence that he was a whistleblower. In the absence of any evidence demonstrating that Scalzi initiated a whistleblowing claim against the City, the Court cannot evaluate the City's adherence to the statute's requirements for a procedure to hear such complaints. Accordingly, no question of material fact exists for the jury on Scalzi's NRS § 281.641 claim.
C. Breach of Duty of Loyalty Counterclaim
Scalzi also seeks judgment on the City's counterclaim for Scalzi's breach of the duty of loyalty. Scalzi argues that Nevada law has not recognized a duty of loyalty for management level employees and, even if it did, the City has not provided sufficient evidence to raise a genuine issue of material fact on this counterclaim. The City failed to address its counterclaim in its Response to Scalzi's Motion. The City's counterclaim alleges that, among other actions, Scalzi took "privileged and private documents" for his own personal use. (Dkt. no. 54 at 7.) The City fails to present any evidence substantiating this claim, and fails to raise any other evidence demonstrating "intentional misconduct, fraud or a knowing violation of the law." See In re Amerco Derivative Lit., 252 P.3d 681, 701 (Nev. 2011) (discussing requirements for demonstrating breach of duty of loyalty by corporate director or officer). In the absence of any argument as to why the duty of loyalty applies to a public employee in Scalzi's position, and in the absence of any genuine issue of material fact, Scalzi's request for summary judgment on the City's counterclaim is granted.
V. CONCLUSION
Scalzi's claims against the City fail for a simple lack of evidence sufficient to raise genuine issues of material fact. Without any circumstantial evidence of discrimination, Scalzi cannot withstand the City's Motion for Summary Judgment on his state law whistleblower and federal sex discrimination claims. Similarly, the City's failure to respond to or provide evidence or argument in support of its counterclaim necessitates granting in part Scalzi's Motion.
Accordingly, IT IS THEREFORE ORDERED that Defendant City of North Las Vegas' Motion for Summary Judgment (dkt. no. 84) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff Michael J. Scalzi's Motion for Summary Judgment (dkt. no. 87) is GRANTED in part and DENIED in part.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE