McIntosh v. City of N. Las Vegas

1

DONAVAN McINTOSH, Plaintiff v. CITY OF NORTH LAS VEGAS, et al., Defendants.

No. 2:21-cv-01505-APG-EJY

United States District Court, D. Nevada

July 28, 2023

ORDER GRANTING IN PART MOTION FOR SUMMARY JUDGMENT [ECF NO. 40]

ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE.

Donavan McIntosh, who is a black police officer at the North Las Vegas Police Department, sues the City of North Las Vegas (CNLV) and current or former department officials Pamela Ojeda, Clinton Ryan, and Alejandro Rodriguez, alleging that they violated state and federal antidiscrimination laws and 42 U.S.C. § 1983 by subjecting him to race discrimination, a racially hostile work environment, and retaliation. The defendants move for summary judgment. ECF No. 40. The parties are familiar with the facts, so I repeat them only as necessary to resolve the pending motion. I grant the defendants' motion in part.

I. ANALYSIS

Summary judgment is appropriate if the movant shows “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). A fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-moving party to set forth specific facts demonstrating there is a genuine issue of material fact and that it could satisfy its burden at trial. Sonner v. Schwabe N. Am., Inc., 911 F.3d 989, 992 (9th Cir. 2018). I view the evidence and reasonable inferences in the light most favorable to the non-moving party. Zetwick v. County of Yolo, 850 F.3d 436 44041 (9th Cir. 2017).

1. COUNT ONE: RACE DISCRIMINATION

McIntosh asserts that CNLV violated Nevada Revised Statutes (NRS) § 613.330 and Title VII of the Civil Rights Act of 1964 by discriminating against him because of his race. CNLV argues that McIntosh fails to raise a genuine dispute that he was subjected to adverse employment actions or that similarly situated individuals were treated more favorably. ECF No. 40 at 18-20. McIntosh responds that while he worked as the recruiter for the CNLV police department, the defendants intentionally made it difficult for him to succeed because he is black. He claims he was discriminatorily transferred from his job in recruiting, removed from the police department's honor guard, and denied subsequent transfers or promotions.

Title VII forbids an employer from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race.” 42 U.S.C. § 2000e-2(a)(1). At summary judgment, I apply the burdenshifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).^[1] Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1105 (9th Cir. 2008). Under that framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir. 2010). The evidence needed to establish a prima facie case “is minimal and does not even need to rise to the level of a preponderance of the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). A prima facie case creates the presumption that the defendant violated Title VII. See Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006). The burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the challenged action. Hawn, 615 F.3d at 1155. If the defendant meets this burden, the plaintiff must raise a triable issue of fact as to whether the given reasons are pretext. Id.

To establish a prima facie case of race discrimination under Title VII, McIntosh must offer proof: (1) that he belongs to a protected class under Title VII; (2) that he was qualified for his position; (3) that he suffered an adverse employment action; and (4) that CNLV treated McIntosh differently than a similarly situated employee who does not belong to the same protected class. Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008). Courts apply the same analysis to discrimination claims under NRS § 613.330. Stewart v. SBE Ent. Grp., LLC, 239 F.Supp.3d 1235, 1246 n.61 (D. Nev. 2017).

CNLV concedes that McIntosh is African American, is a member of a protected class, and was qualified for his recruiting and honor guard positions. ECF No. 40 at 17. I thus focus on whether he offers evidence that he suffered an adverse employment action and that he was treated differently than similarly situated individuals.

In the complaint, McIntosh asserts that he was subjected to four^[2] adverse employment actions: (1) a lack of resources during his stint as recruiter; (2) his removal from the recruiter position; (3) his removal from the police department's honor guard; and (4) the rejection of his applications for transfers to special assignments. ECF No. 1 at 15, 21. CNLV argues that none of these constitutes an adverse employment action because McIntosh's recruiting position was a temporary assignment, honor guard service is strictly voluntary, and McIntosh's rejected reassignment applications were for temporary positions, not promotions. ECF No. 40 at 18-19. McIntosh responds that he has raised a genuine issue that his race was at least a motivating factor in his treatment. ECF No. 49 at 26.

An adverse employment action “materially affects the compensation, terms, conditions, or privileges of employment.” Davis, 520 F.3d at 1089 (cleaned up). I construe the term “adverse employment action” broadly, and it includes an action that negatively affects an employee's compensation. Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th Cir. 2004). Other courts have held that an officer's reassignment from detective to patrol with a five percent pay disparity is sufficient to raise a genuine issue. See Fitzgerald v. El Dorado County, 94 F.Supp.3d 1155, 1171-72 (E.D. Cal. 2015) (reassignment with pay decrease could constitute adverse employment action under the Age Discrimination in Employment Act); Mustafa v. Clark Cnty. School Dist., 157 F.3d 1169, 1180 n.11 (9th Cir. 1998) (noting that the Ninth Circuit applies the same standard to Title VII and age discrimination disparate treatment claims).

If McIntosh offers evidence that he was subjected to an adverse employment action, he must then point to similarly situated individuals who did not experience those actions. He must identify employees outside his race “who were similarly situated to [him] in all material respects but who were given preferential treatment; they must have similar jobs and display similar conduct.” Campbell v. Haw. Dep't of Educ., 892 F.3d 1005, 1015 (9th Cir. 2018) (quotations omitted).

A. Recruiting, Special Assignments, and Honor Guard

Even if McIntosh could show that his transfer from recruiting, removal from the honor guard, and rejection from special assignments were adverse employment actions, he fails to identify any similarly situated individuals who were not subjected to those adverse employment actions. He offers conclusory statements that non-black officers received preferential treatment with respect to those actions, but he does not identify any such employees beyond those general statements. See ECF No. 49-2 at 17; Levy v. Mandalay Corp., No. 2:14-cv-01636-GMN-NJK, 2015 WL 3629633, at *2 (D. Nev. June 10, 2015) (“[S]imilarly situated individuals must be identified with specificity.”). Absent any proof of this element, I grant summary judgment to CNLV insofar as McIntosh alleges it discriminated against him by transferring him out of recruiting, removing him from the honor guard, or denying him other special assignments.

B. Denial of a Budget and Resources

McIntosh offers evidence that, during his tenure as recruiter, he was denied access to resources traditionally afforded to the position and that the lack of resources hindered his job performance. ECF Nos. 49-2 at 9; 49-7 at 8; 49-10 at 11; 49-11 at 20. This is sufficient to meet his burden at this stage of proffering evidence that his conditions of employment were materially affected. See Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1125-26 (9th Cir. 2000) (unprecedented, forcible relocation of employees' laboratory was an adverse employment action because it was a “substantial interference with work facilities important to the performance of the job”); cf. Staff v. Pall Corp., 233 F.Supp.2d 516, 532 (S.D.N.Y. 2002) (failure to receive office or subordinates did not constitute adverse employment action absent evidence plaintiff could not fulfill his job responsibilities without those amenities).

McIntosh also offers evidence that CNLV gave preferential treatment to officers Djuan Muldrew and Diana Franco, who received a budget when they replaced McIntosh in recruiting. ECF No. 49-10 at 11. While Muldrew is also black, Franco is Hispanic. ECF No. 49-12 at 21. McIntosh has therefore met his burden at this stage of offering evidence that a similarly situated employee outside of his racial group received preferential treatment and he has made out a prima facie case that CNLV violated Title VII by denying him resources when he was the department recruiter.

Because McIntosh has made out a prima facie case with respect to his treatment when he was a recruiter, the burden shifts to CNLV to...