Kennedy v. UMC Univ. Med. Ctr.

203 F.Supp.3d 1100

Patricia KENNEDY, Plaintiff,

v.UMC UNIVERSITY MEDICAL CENTER, Defendant.

Case No. 2:14–cv–01678–RFB–PAL

United States District Court, D. Nevada.

Signed August 25, 2016

Arnold Weinstock, Dan M. Winder, Law Office of Dan M. Winder, P.C., Las Vegas, NV, for Plaintiff.

Jeffrey I. Pitegoff, Morris, Sullivan, Lemkul & Pitegoff, Las Vegas, NV, for Defendant.

OPINION & ORDER

Defendant's Motion for Summary Judgment, (Dkt. No. 50)

RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Before the Court is a Motion for Summary Judgment (Dkt. No. 50) filed by Defendant UMC University Medical Center. For the reasons discussed below, the Motion for Summary Judgment is denied with respect to Plaintiff's sexual harassment claims under Title VII and N.R.S. 613.33. The Motion for Summary Judgment is granted with respect to Plaintiff's racial discrimination claims under Title VII, 42 U.S.C. § 1981, and N.R.S. 613.33; retaliation claims under Title VII; sexual harassment claim under 42 U.S.C. 1981 ; age discrimination claim under the Age Discrimination in Employment Act ("ADEA"); and intentional infliction of emotional distress claim.

II. BACKGROUND

Plaintiff Patricia Kennedy is a former employee of UMC University Medical Center. Kennedy brought an action under 42 U.S.C. § 2000 ("Title VII"), 42 U.S.C. § 1981, and N.R.S. 613.33, against Defendant UMC University Medical Center, alleging a hostile work environment as a result of sexual harassment, a hostile work environment as a result of racial discrimination, and retaliation. Plaintiff further alleges age discrimination in violation of 29 U.S.C. §§ 621 –634 ("ADEA"), and intentional infliction of emotional distress. Plaintiff filed her Complaint on October 13, 2014. ECF No. 1. Defendants filed a Motion for Summary Judgment on February 5, 2016. ECF No. 50. Plaintiff also named Doug Spring, Glen MacIntyre, and Steve Winkle in her complaint. On March 7, 2016, Plaintiff stipulated to dismissal of these individual defendants from the case, so only her claims against UMC remain. The Court held a hearing on Defendant's Motion for Summary Judgment on August 19, 2016.

A. Undisputed and Disputed Facts

The Court incorporates its discussion of the undisputed and disputed facts from its hearing on August 19, 2016. The Court discusses and elaborates these facts here.

i. Undisputed Facts

Kennedy's employment as a Legal Specialist at UMC's Risk Management Department commenced on December 17, 2008. In September 2011, Kennedy submitted a Position Description Questionnaire requesting an evaluation of her position's duties in order to determine if it should be reclassified. Kennedy's request for reclassification was denied and Human Resources notified Kennedy that it would wait until a new Director of Risk Management was hired before it reevaluated her position. Glen MacIntyre was hired as Director of Risk Management in July 2012. He was Kennedy's immediate supervisor. On May 18, 2013, Kennedy received notice that she would be reclassified from Legal Specialist to Risk Management Specialist, with a 4% raise.

Kennedy alleges that during MacIntyre's first two days of work in July 2012, he described individuals as "the Black guy" or "Black lady". She further alleges that on one subsequent occasion, MacIntyre told Kennedy that she did not look or sound Black. Kennedy is mixed race, and refers to herself as Black. Kennedy has stated in her deposition that she believes it is acceptable to describe someone as "Black" descriptively to identify them. She has also stated that she does not think Defendant MacIntyre is "against Black people." She has stated that she believes, in a business environment that referring descriptively to someone as Black is "inappropriate". She believed MacIntyre's comment "was an ignorant comment...quite frankly, I knew he was from Tennessee, and I just figured he wasn't used to seeing people that look like me, quite frankly."

On or about March 29, 2013, Hilari Alberto was hired as a paralegal in the Risk Management Department. Alberto was 36 years old. Plaintiff was 56 years old. MacIntyre once stated that he wanted a younger person in the office.

Steve Winkle, another employee with whom Plaintiff worked in the Risk Management Department, made two complaints regarding Kennedy's work on April 16, 2013. On April 18, 2013, Winkle made an email complaint to Doug Spring and two other UMC employees regarding Kennedy's refusals to cooperate with him to sign court petitions for work. On April 19, 2013, Kennedy filed a complaint against Winkle with UMC's Office of Diversity ("OOD") alleging that "he made unnecessary contact with [her] on the pretext of work business," that he "made suggestive sexual gestures", and that Kennedy's avoidance of him "appears to have caused him to begin verbal abuse." Kennedy provided no further detail in her OOD complaint. The OOD conducted an internal investigation and notified Kennedy on May 14, 2013, that insufficient evidence was presented to sustain the charges against Mr. Winkle.

On June 6, 2013, MacIntyre placed Kennedy under a Performance Improvement Plan. Complaints had occurred against Kennedy from various staff at UMC prior to the initiation of the Performance Improvement Plan. On June 7, 2013, MacIntyre gave Kennedy an evaluation which included negative remarks regarding courtesy towards patients on the phone, belligerent behavior towards fellow employees, and a failure to modify behavior after being warned. The evaluation contained high scores on technical work and duties. This performance evaluation was a required step in Kennedy's reclassification process. On June 7, 2013, Doug Spring, an employee in Human Resources, informed Kennedy that reclassification of her position required a closing evaluation from MacIntyre, and that another evaluation would be performed following a qualifying period in the new job classification.

On June 17, 2013, Kennedy filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), alleging discrimination based on sex, race, and age, and retaliation by her employer. On July 15, 2014, the EEOC informed Plaintiff that after conducting an investigation into Plaintiff's allegations of discrimination and retaliation, it concluded that no violations were found and that additional investigation is unlikely to establish any violations.

On July 23, 2013, Brenda Karatas, a Xerox employee, had a work-related dispute that resulted in Karatas making a complaint against Plaintiff. On August 2, 2013, Kennedy was given a Corrective Counseling Notice, a 1 day suspension without pay, and an extension of her Performance Improvement Plan by 30 days. On September 13, 2013, Kennedy attended a meeting with MacIntyre and with a Human Resources employee, Leah Conedy, to discuss her Performance Improvement Plan. At that meeting, Kennedy asked Conedy whether she could be transferred to a different department. Conedy arranged a transfer offer to the HR Department, and on October 8, 2013, Kennedy informed Conedy that she accepted the offer. On October 28, 2013, Kennedy was transferred to the HR Department.

In August 2014, the Chief Executive Officer of UMC informed board members, commissioners, directors, and managers, that widespread layoffs, impacting roughly 285 positions, would be taking place as a response to financial demands. On August 28, 2014, Kennedy was terminated from UMC. In addition to Kennedy, two other employees in the HR Department were also laid off in August 2014. One of those employees had worked at UMC for 17 years, and the other for 20 or more years, and each had worked in the HR department longer than Kennedy had. Kennedy worked in the HR department for less than a year prior to her termination, and had worked at UMC for 5 years and 10 months. UMC has an administrative policy of layoffs based on seniority within position classifications.

ii. Disputed Facts

In the instant case, Kennedy alleges that Steve Winkle had an obvious erection in her presence on three occasions. The parties dispute whether the erections occurred.

III. LEGAL STANDARD

Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; accord Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When considering the propriety of summary judgment, the court views all facts and draws all inferences in the light most favorable to the nonmoving party. Gonzalez v. City of Anaheim , 747 F.3d 789, 793 (9th Cir. 2014). If the movant has carried its burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (alteration in original) (internal quotation marks omitted).

IV. ANALYSIS

A. 42 U.S.C. § 1981 : Hostile Work Environment as a Result of Sex Based Discrimination

Defendant argues that 42 U.S.C. § 1981 does not apply to claims of discrimination based on sex. Section 1981 provides that "all persons shall have the same right[s]...[as are] enjoyed by white citizens." 42 U.S.C. § 1981. It is not addressed to categories of selectivity based on sex. See Runyon v. McCrary , 427 U.S. 160, 167, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976). Plaintiff conceded this point at the hearing on this case.

Therefore, the Court dismisses any § 1981 claim to the extent that it is alleging sex based discrimination.

B. Title VII and N.R.S. 613.33: Hostile Work Environment as a Result of Sex Based Discrimination

Nevada looks to the federal courts for guidance in discrimination cases applying its anti-discrimination statute, ...