Roberts v. Las Vegas Valley Water Dist.

• Decision Date: 18 April 1994
• Docket Number: No. CV-S-92-1062-PMP (RLH).,CV-S-92-1062-PMP (RLH).
• Citation: 849 F. Supp. 1393
• Parties: Jim A. ROBERTS, Plaintiff, v. THE LAS VEGAS VALLEY WATER DISTRICT, et al., Defendants.
• Court: U.S. District Court — District of Nevada

849 F. Supp. 1393

Jim A. ROBERTS, Plaintiff, v. THE LAS VEGAS VALLEY WATER DISTRICT, et al., Defendants.

No. CV-S-92-1062-PMP (RLH).

United States District Court, D. Nevada.

April 18, 1994.

Lynn R. Shoen, Las Vegas, NV, for plaintiff.

Gregory E. Smith, Keith E. Kizer, Smith & Kotchka, Las Vegas, NV, for defendants.

ORDER

PRO, District Judge.

Before the Court is a Motion for Summary Judgment (# 22) filed by Defendants Las Vegas Valley Water District ("District"), Patricia Mulroy ("Mulroy") and Patricia Maxwell ("Maxwell") on January 20, 1994. Plaintiff Jim A. Roberts ("Roberts") filed his Opposition (# 24) on February 7, 1994. Defendants filed their Reply (# 27) on March 28, 1994.

I. Summary Judgment

Pursuant to Federal Rule of Civil Procedure 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. 699, 98 L.Ed.2d 650 (1988).

If the party seeking summary judgment meets this burden, then summary judgment will be granted unless there is significant probative evidence tending to support the opponent's legal theory. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968); Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270 (9th Cir. 1979). Parties seeking to defeat summary judgment cannot stand on their pleadings once the movant has submitted affidavits or other similar materials. Affidavits that do not affirmatively demonstrate personal knowledge are insufficient. British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979). Likewise, "legal memoranda and oral argument are not evidence and do not create issues of fact capable of defeating an otherwise valid motion for summary judgment." Id.

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 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).

II. Facts

Defendant Las Vegas Valley Water District employed Plaintiff Roberts from 1969 until his termination on June 12, 1992. Specifically, Roberts worked as Support Manager in the Treatment and Transmission Department since being transferred to that Department in 1987. According to Defendants, Joe Monscvitz ("Monscvitz") has managed the Treatment and Transmission Department since 1971, and he reports to Water System Deputy General Manager Robert Sullivan. In turn, Sullivan reports to District General Manager Defendant Mulroy. Defendant Maxwell is the Director of Human Resources and staff services for the District.

According to Defendants, in 1991, Roberts began to send internal correspondence to other departments, in which he criticized certain District employees, practices and policies. Monscvitz, Roberts' supervisor, attempted to curb this practice by requiring that he give his prior approval to all interdepartmental correspondence and correspondence written by Roberts as a management employee. Monscvitz warned Roberts that a failure to abide by this policy could result in discipline, up to and including termination from employment. According to Defendants, Roberts responded, in writing, that he would not follow this policy, and in fact did not follow it on two subsequent occasions.

Additionally, the record reflects repeated correspondence between Roberts and Clark County Commissioner Bruce Woodbury ("Woodbury") beginning with a letter dated May 13, 1991, in which Roberts discussed his dissatisfaction with specific District policies and practices.¹ See, e.g., Exhibits 7 & 9, attached to Plaintiff's Opposition (# 24) (copies of Roberts' letters to Commissioner Woodbury).

In a July 26, 1991, internal memorandum, Monscvitz told Roberts that Roberts' communication with Woodbury was a breach of the chain of command, and that by such communication, Roberts was "doing an injustice to the Treatment and Transmission Department and destroying a team that we have developed over the years ..." In this memorandum, Monscvitz also objected to the fact that Roberts signed his communications to Woodbury using his title of Support Manager, as Monscvitz believed this conveyed the erroneous impression that Roberts was representing the entire Treatment and Transmission Department, rather than just himself. Monscvitz ended the memo by noting that "it is evident that you do not wish to participate as a team member any longer."

In a subsequent memorandum, dated August 22, 1991, Monscvitz confirmed a conversation between himself and Roberts, and ordered that "no inter-department correspondence shall leave the Treatment and Transmission Department under the Support Manager's signature. Correspondence that is necessary is to be prepared by the Support Manager for the Director's signature, inasmuch as you can no longer be trusted to maintain effective working relationships with other Departments." This memo also commanded Roberts to "suspend all letter-writing to Commissioner Woodbury that concerns the Treatment and Transmission Department. Communication on policy matters will be made through official channels." This memo threatened discipline if Roberts failed to comply with its mandates.

On October 16, 1991, Monscvitz suspended Roberts for five days without pay, citing Roberts' written refusal to follow Monscvitz's command, contained in his August 22, 1991, memorandum, that Roberts cease interdepartmental communication. The memorandum suspending Roberts also warned that any further violation of District policies or of Monscvitz's directives would result in termination.²

On May 22, 1992, Monscvitz sent Roberts a Notice of Intent to Terminate ("Notice"). According to Defendants, Monscvitz directed Roberts and a co-worker, Bill DiTrapani ("DiTrapani"), to attend a workshop held by the Nevada Division of Environmental Protection on May 7, 1992. The workshop was being held to discuss proposed regulations concerning facilities that deal with certain quantities of highly hazardous materials. Roberts' position is that he made reservations to go to this workshop, but that on the morning of May 7, 1992, he discovered that Monscvitz also had planned to go, and that he decided that since Monscvitz would be there, he did not have to attend. Roberts also stated that on two occasions, he checked with Monscvitz, and that on both of those occasions, Monscvitz indicated that Roberts was not required to attend the workshop.

Monscvitz's Notice of Intent to Terminate cites Roberts' intentional absence from the workshop as insubordination, and notes his prior suspension. The Notice placed Roberts on administrative leave with pay pending final action, and restricted him to the public areas of the Treatment Plant and Water District central office. It also notified Roberts of his right to have a pre-termination hearing pursuant to District Procedure No. 110, and that if he wished to have such a hearing, he had to request it within two days of the date he received the notice.

On May 26, 1992, Roberts sent Monscvitz two documents. The first was a request for an appeal hearing, so that Roberts could appeal his October 16, 1991, suspension. The second was a Request for Pre-Termination hearing, in accordance with Las Vegas Valley Water District Procedure No. 110. On June 5, 1992, Roberts sent Monscvitz a "Rebuttal of Charge" letter, in which Roberts discussed the charge against him, his rebuttal, and the background leading up to the Notice of Intent to Terminate. On June 10, 1992, Monscvitz sent a written reply...