Candelore v. Clark County Sanitation Dist.

• Decision Date: 10 December 1990
• Docket Number: No. CV-S-89-165-PMP (RJJ).,CV-S-89-165-PMP (RJJ).
• Citation: 752 F. Supp. 956
• Parties: Elaine CANDELORE, Plaintiff, v. CLARK COUNTY SANITATION DISTRICT; E. James Gans; Michael G. Pierson; Fred Turnier; and Does I Through XXX, Inclusive, Defendants.
• Court: U.S. District Court — District of Nevada

752 F. Supp. 956

Elaine CANDELORE, Plaintiff, v. CLARK COUNTY SANITATION DISTRICT; E. James Gans; Michael G. Pierson; Fred Turnier; and Does I Through XXX, Inclusive, Defendants.

No. CV-S-89-165-PMP (RJJ).

United States District Court, D. Nevada.

December 10, 1990.

John J. Tofano, Las Vegas, Nev., for plaintiff.

Carol R. Davis, Beckley, Singleton De Lanoy, Jemison & List, Chtd., Las Vegas, Nev., for defendants.

ORDER

PRO, District Judge.

This case arises out of allegedly discriminatory treatment of Plaintiff while she was employed at the Defendant Clark County Sanitation District (the "District"). During the relevant time period, Defendant E. James Gans was the Director of the District. Defendant Fred Turnier was the Manager of the Administrative Services Division within the District, and Defendant Michael Pierson headed the Administrative Support section within Administrative Services. Plaintiff worked in the Administrative Support section before relocating to the Purchasing section and eventually out of the District.

Plaintiff alleges that she was subjected to poor treatment and harassment at the work place on the basis of her age and/or sex. The facts on which she bases this conclusion are as follows. Plaintiff began in the Administrative Services Division in 1978, where she received consistently good evaluations and appropriate promotions. She claims that her troubles started with the arrival of Ginger Woods, a substantially younger woman, in 1982. Woods had been in the District since late 1979, but later was promoted to Division Secretary, working for Defendant Turnier.

Plaintiff claims that Woods received preferential treatment including a lighter work load, longer lunch hours, and new office furniture because she had or was having an affair with Defendants Gans and Turnier. Plaintiff alleges that she complained about this preferential treatment, and that led to her being treated poorly in an effort to force her to leave.

Plaintiff filed charges of age discrimination with the Equal Employment Opportunity Commission, and charges of age and sex discrimination with the Nevada Equal Rights Commission. Having exhausted her administrative remedies, Plaintiff filed a Complaint in state court on February 3, 1989.¹ The case was removed to this Court by Defendants on March 2, 1989 (# 1). The Complaint basically alleges three causes of action. The first is for sex discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment, pursuant to 42 U.S.C. § 1983.² The second is for age discrimination under the Age Discrimination in Employment Act ("ADEA"). Finally, Plaintiff alleges intentional infliction of emotional distress against the three individual Defendants.

On July 3, 1990 Defendants filed a Motion for Summary Judgment (# 62A). Plaintiff filed an Opposition and supporting exhibits on August 14, 1990 (# 66-69), including an affidavit of Plaintiff (# 68). Defendants filed a Reply on September 11, 1990 (# 75). Plaintiff filed a Supplemental Affidavit in Opposition to Defendants' Motion for Summary Judgment on October 4, 1990 (# 77), which Defendants Moved to Strike on October 12, 1990 (# 78). Plaintiff filed an Opposition to Defendants' Motion to Strike on October 18, 1990 (# 79) and an Affidavit of John J. Tofano in Support of Plaintiff's Opposition on October 22, 1990 (# 80). Defendants filed a Reply on October 31, 1990 (# 81).

MOTION FOR SUMMARY JUDGMENT

Pursuant to Fed.R.Civ.P. 56, summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

The party moving for summary judgment has the initial burden of showing the absence of a genuine issue of material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir.1982). Once the movant's burden is met by presenting evidence which, if uncontroverted, would entitle the movant to a directed verdict at trial, the burden then shifts to the respondent to set forth specific facts demonstrating that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). If the factual context makes the respondent's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); California Arch. Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir.1987), cert. denied, 484 U.S. 1006, 108 S.Ct. 698, 699, 98 L.Ed.2d 650 (1988).

A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the differing versions of the truth. See Admiralty Fund v. Hugh Johnson & Co., 677 F.2d 1301, 1305-06 (9th Cir.1982); Admiralty Fund v. Jones, 677 F.2d 1289, 1293 (9th Cir.1982).

All facts and inferences drawn must be viewed in the light most favorable to the responding party when determining whether a genuine issue of material fact exists for summary judgment purposes. Poller v. CBS, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). After drawing inferences favorable to the respondent, summary judgment will be granted only if all reasonable inferences defeat the respondent's claims. Admiralty Fund v. Tabor, 677 F.2d 1297, 1298 (9th Cir.1982).

The recent trilogy of Supreme Court cases cited above establishes that "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp., 477 U.S. at 327, 106 S.Ct. at 2555 (quoting Fed.R.Civ.P. 1); see also Avia Group Int'l, Inc. v. L.A. Gear Cal., 853 F.2d 1557, 1560 (Fed.Cir.1988).

Plaintiff brings a claim under 42 U.S.C. § 1983 for sex discrimination in violation of the Fourteenth Amendment's Equal Protection Clause. The Equal Protection Clause is only violated if such discrimination is intentional; that is, the actions must have been taken at least in part because of its adverse effects upon an identifiable group e.g. women. Personnel Adm'r v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977). The pleading and proof of liability in such a case is the same as that used in disparate treatment claims under Title VII of the Civil Rights Act of 1964 ("Title VII"). Riordan v. Kempiners, 831 F.2d 690, 695-96 (7th Cir.1987) and cases cited therein. These standards apply to claims under the ADEA as well. Palmer v. United States, 794 F.2d 534, 537 (9th Cir.1986).

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973), the Supreme Court allocated the burdens of proof for a Title VII claim. Plaintiff initially bears the burden of establishing a prima facie case of discrimination which "in effect creates a presumption that the employer unlawfully discriminated against the employee." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). Next, the burden shifts to the employer to "articulate some legitimate, nondiscriminatory reason" for the action taken. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. However, the defendant bears only a burden of production, not a burden of persuasion. "It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Burdine, 450 U.S. at 254-55, 101 S.Ct. at 1094. The Plaintiff then "must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination." Id. at 256, 101 S.Ct. at 1095.

Plaintiff may establish a prima facie case of sex discrimination in several different ways. First, she may demonstrate disparate treatment as between men and women. However, there is no allegation that any males were treated more favorably than Plaintiff, and Plaintiff admitted in her deposition that she knows of no males who received preferential treatment.

Secondly, Plaintiff may establish a claim based on sexual harassment. There are two types of such claims. The first is "quid pro quo" harassment in which the terms or conditions of employment are conditioned on consent to sexual favors. The second is "hostile environment" harassment, which is only actionable when the sexual harassment is "sufficiently severe or pervasive `to alter the conditions of the victim's employment and create an abusive working environment.'" Meritor Savings Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986) (quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir.1982)).

It seems that Plaintiff is attempting to establish the first type of claim by showing that Ms. Woods, who allegedly had a sexual relationship with Defendants Gans and Turnier, was treated better than she and others in the office who were not engaged in such a relationship. However, Plaintiff does not allege that she was subject to any sexual advances by Defendants, nor does she have any evidence of any unwelcome sexual conduct by Defendants directed at anyone. Instead, she asserts that her claim is actionable because the different treatment was "bottomed on sex." Plaintiff's Opposition to Motion for...