Case 3:13-cv-00270-RCJ-VPC Document 53 Filed 01/08/15 Page 1 of 13
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF NEVADA
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` ORDER
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` 3:13-cv-00270-RCJ-VPC
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`Defendants.
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`This case arises out of an alleged hostile workplace environment and unlawful retaliation.
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`Pending before the Court is a Motion for Summary Judgment (ECF No. 32). For the reasons
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`given herein, the Court grants the motion in part and denies it in part.
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`I.
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`FACTS AND PROCEDURAL HISTORY
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`Plaintiff Linda Huntsberger was the City Clerk of Defendant City of Yerington (the
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`“City”) from May 29, 2007 until her termination. (See Compl. ¶¶ 6, 23, ECF No. 1). During her
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`employment, Defendants Mayor Douglas Homestead and City Manager Dan Newell used
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`derogatory terms to refer to women, i.e., Newell repeatedly called Plaintiff a “fucking bitch” and
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`Homestead referred to non-parties as “fucking cunt,” “fucking bitch,” and “bitch” in Plaintiff’s
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`presence. (Id. ¶¶ 9–11). Homestead and Newell also made derogatory remarks about Hispanic
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`people. (Id. ¶ 12).1 Plaintiff complained to Homestead and Newell to no avail. (Id. ¶ 13).
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`1 Plaintiff presumably means to allege a race-based HWE, not a national-origin-based HWE.
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`______________________________________
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`LINDA HUNTSBERGER,
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` Plaintiff,
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`vs.
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`CITY OF YERINGTON et al.,
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`AMENDED ORDER (ECF #50)
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`ORDER AMENDING (ECF #50)
`ENTERED JANUARY 5, 2015
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`Case 3:13-cv-00270-RCJ-VPC Document 53 Filed 01/08/15 Page 2 of 13
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`When Plaintiff complained to the Human Resources office, no corrective action was
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`taken; rather, Defendants retaliated against her for having complained. (Id. ¶ 14). First,
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`Homestead and Newell began executing City contracts without Plaintiff’s statutorily required
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`signature. (Id. ¶¶ 15–17). Plaintiff complained to the Attorney General and met with an
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`investigator. (Id. ¶¶ 18–19). When Homestead and Newell learned of the investigation, they
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`further retaliated against Plaintiff. (Id. ¶¶ 20–21). Newell ordered Plaintiff not to speak to any
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`other City employees or City Council members under threat of termination. (Id. ¶ 22). On one
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`occasion, Newell screamed at Plaintiff for speaking to a City employee and ordered her to leave
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`the building. (Id. ¶ 24). Newell and Homestead caused Plaintiff’s proposed termination to be
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`placed on a City Council agenda on the pretext of poor performance, and she was terminated.
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`(Id. ¶ 23). They also disclosed portions of Plaintiff’s confidential employee file to a local
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`newspaper. (Id. ¶ 25).
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`Plaintiff sued Defendants in this Court for: (1)–(2) hostile workplace environment
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`(“HWE”) based on sex under Title VII of the Civil Rights Act of 1964 and Nevada Revised
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`Statutes (“NRS”) section 613.330; (3) HWE based on national origin (presumably under Title
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`VII and NRS section 613.330); (4) retaliation in violation of the First Amendment (presumably
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`under 42 U.S.C. § 1983); (5) retaliation in violation of NRS section 281.641; (6) retaliation in
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`violation of Title VII; and (7) retaliation in violation of NRS section 613.330. Defendants have
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`moved for summary judgment against all claims.
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`II.
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`LEGAL STANDARDS
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`A court must grant summary judgment when “the movant shows that there is no genuine
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`dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
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`Civ. P. 56(a). Material facts are those which may affect the outcome of the case. See Anderson v.
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`Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute as to
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`Case 3:13-cv-00270-RCJ-VPC Document 53 Filed 01/08/15 Page 3 of 13
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`a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict
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`for the nonmoving party. See id. A principal purpose of summary judgment is “to isolate and
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`dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106 S.
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`Ct. 2548, 91 L. Ed. 2d 265 (1986). In determining summary judgment, a court uses a burden-
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`shifting scheme:
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`When the party moving for summary judgment would bear the burden of proof at
`trial, it must come forward with evidence which would entitle it to a directed
`verdict if the evidence went uncontroverted at trial. In such a case, the moving
`party has the initial burden of establishing the absence of a genuine issue of fact
`on each issue material to its case.
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`C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations
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`and internal quotation marks omitted). In contrast, when the nonmoving party bears the burden
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`of proving the claim or defense, the moving party can meet its burden in two ways: (1) by
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`presenting evidence to negate an essential element of the nonmoving party’s case; or (2) by
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`demonstrating that the nonmoving party failed to make a showing sufficient to establish an
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`element essential to that party’s case on which that party will bear the burden of proof at trial.
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`See Celotex Corp., 477 U.S. at 323–24. If the moving party fails to meet its initial burden,
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`summary judgment must be denied and the court need not consider the nonmoving party’s
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`evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60, 90 S. Ct. 1598, 26 L. Ed. 2d
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`142 (1970).
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`If the moving party meets its initial burden, the burden then shifts to the opposing party
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`to establish a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio
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`Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). To establish the existence of
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`a factual dispute, the opposing party need not establish a material issue of fact conclusively in its
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`favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to
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`resolve the parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec.
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`Case 3:13-cv-00270-RCJ-VPC Document 53 Filed 01/08/15 Page 4 of 13
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`Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party
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`cannot avoid summary judgment by relying solely on conclusory allegations unsupported by
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`facts. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go
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`beyond the assertions and allegations of the pleadings and set forth specific facts by producing
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`competent evidence that shows a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp.,
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`477 U.S. at 324.
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`At the summary judgment stage, a court’s function is not to weigh the evidence and
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`determine the truth, but to determine whether there is a genuine issue for trial. See Anderson, 477
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`U.S. at 249. The evidence of the nonmovant is “to be believed, and all justifiable inferences are
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`to be drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely
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`colorable or is not significantly probative, summary judgment may be granted. See id. at 249–50.
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`III. ANALYSIS
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`A.
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`Gender-Based HWE Under Title VII and NRS Section 613.330
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`As to the gender-based HWE claims, Defendants argue that the alleged verbal comments
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`are legally insufficient to support the HWE claims. “When the workplace is permeated with
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`‘discriminatory intimidation, ridicule, and insult,’ that is ‘sufficiently severe or pervasive to alter
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`the conditions of the victim’s employment and create an abusive working environment,’ Title
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`VII is violated.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (citations omitted). A Title VII
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`offense requires more than “mere utterance of an . . . epithet” causing offensive feelings but does
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`not require an environment so severe as to cause a nervous breakdown. Id. at 21–22. The
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`conduct must be severe or pervasive enough that a reasonable person would consider it hostile or
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`abusive. Id. at 21.
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`[W]hether an environment is “hostile” or “abusive” can be determined only by
`looking at all the circumstances. These may include the frequency of the
`discriminatory conduct; its severity; whether it is physically threatening or
`humiliating, or a mere offensive utterance; and whether it unreasonably interferes
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`Case 3:13-cv-00270-RCJ-VPC Document 53 Filed 01/08/15 Page 5 of 13
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` The effect on the employee’s
`with an employee’s work performance.
`psychological well-being is, of course, relevant to determining whether the
`plaintiff actually found the environment abusive. But while psychological harm,
`like any other relevant factor, may be taken into account, no single factor is
`required.
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`Id. at 23. The upshot of this language is that claims of a working environment where abusive
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`treatment or language is arguably “severe” or “pervasive” ought to be determined by a jury.
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`Plaintiff has testified that on one occasion, Homestead entered Roy “Mac” MacDonald’s
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`office in the Public Works Department when Plaintiff was present and referred to a woman
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`named Colleen as a “fucking bitch” and “fucking cunt” because of a power struggle between
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`them. (See Huntsberger Dep. 38–39, ECF No. 36-1). Plaintiff did not report the incident to
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`anyone, although she told Homestead she couldn’t believe he was talking that way. (Id. 39–40).
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`On another occasion, Homestead said in Plaintiff’s presence, “Those fat, fucking bitches are at it
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`again. They fucking filed a suit against me.” (Id. 70–71). On another occasion, Homestead said
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`about a woman who was leaving the room but still in earshot, “I hate that fucking bitch. I would
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`like to smack her up along side of the head.” (Id. 76). Newell once referred to Plaintiff as “that
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`fucking bitch” when she was leaving a meeting. (Id. 96–98). Newell once referred to a woman
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`from the Department of Taxation as a “that fucking bitch” in Plaintiff’s presence while the
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`woman was on speakerphone, and the woman heard the comment. (Id. 101). Homestead or
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`Newell (it isn’t clear from the excerpt of the transcript) once referred to meetings of the city
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`clerks in Nevada as “just a bunch of cackling old hens” when telling Plaintiff that she didn’t need
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`to attend. (Id. 142). Newell once commented that no women were smart enough to do the work
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`at the City. (Id.). One time, a woman who had been abused had come to City Hall, and
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`Homestead commented that “[m]ost of the time they deserve it.” (Id. 143). The circumstances
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`do not make clear the remark was meant to refer to women being abused, but that is how
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`Plaintiff perceived it. (See id. 143–45). The evidence adduced is sufficient for Plaintiff to satisfy
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`Case 3:13-cv-00270-RCJ-VPC Document 53 Filed 01/08/15 Page 6 of 13
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`her shifted burden as to the gender-based HWE claims, even assuming Defendants could satisfy
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`their initial burden.2 There is admissible evidence of repeated comments indicating disdain for
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`women made in Plaintiff’s presence, with at least one comment made about Plaintiff herself.
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`The Court denies summary judgment on these claims.
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`Defendants note that the Charge of Discrimination Plaintiff filed with the EEOC does not
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`identify Homestead, but only Newell, and they argue that this limits the Court’s jurisdiction to
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`claims against Newell. (See Charge of Discrimination, ECF No. 32-1, at 137). “Subject matter
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`jurisdiction extends to all claims of discrimination that fall within the scope of the EEOC’s
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`actual investigation or an EEOC investigation that could reasonably be expected to grow out of
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`the charge.” Vasquez v. Cnty. of L.A., 349 F.3d 634, 644 (9th Cir. 2003) (citing 42 U.S.C.
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`§ 2000e–5(b); B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099–1100 (9th Cir. 2002)). Title
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`VII charges may be brought against persons not named in a charge of discrimination if those
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`persons were involved in the acts giving rise to the charge and should have anticipated the
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`claimant would name them in a lawsuit. See Sosa v. Hiraoka, 920 F.2d 1451, 1458–59 (9th Cir.
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`1990). Homestead is alleged to have made the same kinds of misogynistic comments that
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`Newell is accused of in the Charge of Discrimination. The Court will therefore not grant
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`summary judgment to Homestead simply because he is not named in the Charge of
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`Discrimination. If Homestead worked for a different agency, the matter would be different. In
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`that case, there would be an issue of notice. But because the Charge of Discrimination is against
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`the “City of Yerington,” and because Homestead, like Newell, worked for the City, and
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`apparently worked closely with him, there is little doubt that Homestead, like Newell, was made
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`aware of the charges and should have expected to be named in an eventual lawsuit.
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`2 The Edwards and Castello Affidavits contain mostly inadmissible character evidence as to
`Newell’s alleged history of sexism.
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`Case 3:13-cv-00270-RCJ-VPC Document 53 Filed 01/08/15 Page 7 of 13
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`Finally, Defendants are simply wrong that acts occurring more than 180 (or 300) days
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`before the Charge of Discrimination was filed cannot be considered as contributing to the HWE
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`claim:
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`In determining whether an actionable hostile work environment claim
`exists, we look to “all the circumstances,” including “the frequency of the
`discriminatory conduct; its severity; whether it is physically threatening or
`humiliating, or a mere offensive utterance; and whether it unreasonably interferes
`with an employee’s work performance.” To assess whether a court may, for the
`purposes of determining liability, review all such conduct, including those acts
`that occur outside the filing period, we again look to the statute. It provides that a
`charge must be filed within 180 or 300 days “after the alleged unlawful
`employment practice occurred.” A hostile work environment claim is composed
`of a series of separate acts that collectively constitute one “unlawful employment
`practice.” 42 U.S.C. § 2000e–5(e)(1). The timely filing provision only requires
`that a Title VII plaintiff file a charge within a certain number of days after the
`unlawful practice happened. It does not matter, for purposes of the statute, that
`some of the component acts of the hostile work environment fall outside the
`statutory time period. Provided that an act contributing to the claim occurs within
`the filing period, the entire time period of the hostile environment may be
`considered by a court for the purposes of determining liability.
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`That act need not, however, be the last act. As long as the employer has
`engaged in enough activity to make out an actionable hostile environment claim,
`an unlawful employment practice has “occurred,” even if it is still occurring.
`Subsequent events, however, may still be part of the one hostile work
`environment claim and a charge may be filed at a later date and still encompass
`the whole.
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`It is precisely because the entire hostile work environment encompasses a
`single unlawful employment practice that we do not hold, as have some of the
`Circuits, that the plaintiff may not base a suit on individual acts that occurred
`outside the statute of limitations unless it would have been unreasonable to expect
`the plaintiff to sue before the statute ran on such conduct. The statute does not
`separate individual acts that are part of the hostile environment claim from the
`whole for the purposes of timely filing and liability. And the statute does not
`contain a requirement that the employee file a charge prior to 180 or 300 days
`“after” the single unlawful practice “occurred.” Given, therefore, that the
`incidents constituting a hostile work environment are part of one unlawful
`employment practice, the employer may be liable for all acts that are part of this
`single claim. In order for the charge to be timely, the employee need only file a
`charge within 180 or 300 days of any act that is part of the hostile work
`environment.
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`Case 3:13-cv-00270-RCJ-VPC Document 53 Filed 01/08/15 Page 8 of 13
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`Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116–18 (2002) (citations and footnote
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`omitted; emphasis added). The Court is perplexed how Defendants have purported to extract a
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`rule from this case that any acts that would be time barred under Title VII if brought as discrete
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`acts of discrimination cannot be included as part of an HWE claim. The case quite clearly stands
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`for the opposite proposition. Plaintiff does not bring any claims based on discrete,
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`discriminatory acts. Apart from her retaliation claims, she alleges only HWE claims. Because at
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`least one of the acts contributing to the HWE claim occurred within the relevant limitations
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`period, all of the acts encompassing the HWE claim are properly considered in assessing the
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`unitary claim.
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`B.
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`National-Origin-Based HWE Under Title VII and NRS Section 613.330
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`As to racially derogatory comments, Plaintiff admitted that she had never heard
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`Homestead make any such comments, (see Huntsberger Dep. 54), but she testified that Newell
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`had once said to another person in her presence, “I want you to go get your gun, and I want you
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`to go down there and pop off a few of those Mexicans. They make our town look bad.” (Id. 54–
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`55). On another occasion, Newell said, “I hate Mexican beans. They’re just a bunch of
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`beaners.” (Id. 55). Plaintiff told Ms. Sheema Shaw about the incident but never reported it to
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`anyone else. (Id. 55–61). There was another incident where Newell said, “Now there’s just a
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`bunch of Goddamn Mexicans there [at the Catholic Church].” (Id. 66–67). Plaintiff could not
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`recall any other racially hostile comments made by Newell. (Id. 66). The Court grants summary
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`judgment on the national-origin-based HWE claim. Defendants have noted that there is no
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`evidence of severe or pervasive racially hostile comments, and there is not enough evidence
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`adduced in response to support a finding of severity or pervasiveness. Three comments
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`indicating dislike for Mexican persons over the course of several years, none of which were
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`directed towards Plaintiff is not enough. The same is true of a potential claim based on a
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`Case 3:13-cv-00270-RCJ-VPC Document 53 Filed 01/08/15 Page 9 of 13
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`religiously hostile environment. A single comment concerning the prevalence of Mexicans at the
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`local Catholic Church (of which the speaker himself apparently claimed to have been a member),
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`is neither severe nor pervasive.
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`The Court notes that it is not clear there is no evidence of any race-based comment within
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`300 days of Plaintiff having filed her Charge of Discrimination on August 31, 2011. The last
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`race-based comment was allegedly made in “late summer” or “fall” of 2010. (See id. 126–28).
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`The last day of Fall 2010 was December 20, 2010, 254 days before the Charge of Discrimination
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`was filed on August 31, 2011. There is no evidence of the exact date, however. If there were
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`evidence of a severe or pervasively racially hostile workplace environment, the Court would not
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`be inclined to grant summary judgment on the basis of untimeliness but rather would be inclined
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`to submit a special interrogatory to the jury on the issue.
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`C.
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`First Amendment Retaliation Under § 1983
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`In order to state a claim against a government employer for violation of the First
`Amendment, an employee must show (1) that he or she engaged in protected
`speech; (2) that the employer took “adverse employment action”; and (3) that his
`or her speech was a “substantial or motivating” factor for the adverse employment
`action.
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`Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003). Not all speech is protected,
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`however. “[W]hile the First Amendment invests public employees with certain rights, it does not
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`empower them to constitutionalize the employee grievance.” Desrochers v. City of San
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`Bernardino, 572 F.3d 703, 718 (9th Cir. 2009) (quoting Garcetti v. Ceballos, 547 U.S. 410, 420
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`(2006)). The Supreme Court has stated:
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`When a public employee sues a government employer under the First
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`Amendment’s Speech Clause, the employee must show that he or she spoke as a
`citizen on a matter of public concern. Connick v. Myers, 461 U.S. 138, 147, 103
`S. Ct. 1684, 75 L. Ed. 2d 708 (1983). If an employee does not speak as a citizen,
`or does not address a matter of public concern, “a federal court is not the
`appropriate forum in which to review the wisdom of a personnel decision taken
`by a public agency allegedly in reaction to the employee’s behavior.” Ibid. Even
`if an employee does speak as a citizen on a matter of public concern, the
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`Case 3:13-cv-00270-RCJ-VPC Document 53 Filed 01/08/15 Page 10 of 13
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`employee’s speech is not automatically privileged. Courts balance the First
`Amendment interest of the employee against “the interest of the State, as an
`employer, in promoting the efficiency of the public services it performs through
`its employees.” Pickering v. Board of Ed. of Township High School Dist. 205,
`Will Cty., 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968).
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`Borough of Duryea, Pa. v. Guarnieri, 131 S. Ct. 2488, 2493 (2011); see also id. at 2500–01
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`(holding that the analysis under the Petition Clause mirrors the analysis under the Speech
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`Clause). Analysis of a First Amendment retaliation claim consists of:
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`a sequential five-step series of questions: (1) whether the plaintiff spoke on a
`matter of public concern; (2) whether the plaintiff spoke as a private citizen or
`public employee; (3) whether the plaintiff’s protected speech was a substantial or
`motivating factor in the adverse employment action; (4) whether the state had an
`adequate justification for treating the employee differently from other members of
`the general public; and (5) whether the state would have taken the adverse
`employment action even absent the protected speech.
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`Desrochers, 572 F.3d at 708–09 (quoting Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009)).
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`If the speech did not touch on a matter of public concern, the inquiry ends. See id. at 709.
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`Plaintiff bears the burden of showing that his speech addressed an issue of public concern, based
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`on “the content, form, and context of a given statement, as revealed by the whole record.” See id.
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`(quoting Connick, 461 U.S. at 147–48). “[T]he essential question is whether the speech
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`addressed matters of ‘public’ as opposed to ‘personal’ interest.” Id. (citing Connick, 461 U.S. at
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`147).
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`
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`In Desrochers, four sergeants of the San Bernardino Police Department (“SBPD”) filed
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`an informal grievance about their Lieutenant. Id. at 705. When the Lieutenant found out about
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`the grievance, he requested a transfer, which was granted, and the aggrieved sergeants had little
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`to no contact with the Lieutenant thereafter. Id. at 706. Two of the sergeants resolved their
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`grievance, but Sergeants Desrochers and Lowes went on to file a formal grievance against the
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`Lieutenant, the Chief of Police, and the Captain who had adjudicated the informal grievance. Id.
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`The formal grievance, which was supported by declarations describing several incidents,
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`Case 3:13-cv-00270-RCJ-VPC Document 53 Filed 01/08/15 Page 11 of 13
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`essentially alleged that the Lieutenant was a bully who had created a “hostile work environment”
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`and that neither the Captain nor the Chief of Police had taken appropriate steps to remedy the
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`situation. See id. at 706–07. The Captain denied the formal grievance. Id. at 707. Desrochers
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`and Lowes then filed a complaint with the City’s Human Resources Department (“HR”) against
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`the Lieutenant, the Lieutenant’s replacement, the Captain, and the Chief of Police, and HR
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`eventually denied the complaint. Id. at 708. Desrochers was transferred from the Homicide Unit
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`to the Robbery Unit, which he viewed as a demotion, and Lowes had become the subject of an
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`internal affairs investigation based on an arrest he had made, resulting in a two-week suspension.
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`Id. at 704.
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`Desrochers and Lowes filed a § 1983 action for First Amendment retaliation, as well as
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`several state law claims, but the district court granted summary judgment to the defendants
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`because the speech at issue did not address matters of public concern. Id. at 708. The Court of
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`Appeals affirmed, noting that “the essential question is whether the speech addressed matters of
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`‘public’ as opposed to ‘personal’ interest,” which is a question of law upon which a plaintiff
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`bears the burden. Id. (citations omitted). The line is between “issues about which information is
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`needed or appropriate to enable the members of society to make informed decisions about the
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`operation of their government” on the one hand, see id. at 710 (quoting McKinley v. City of Eloy,
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`705 F.2d 1110, 1114 (9th Cir. 1983)), and “speech that deals with ‘individual personnel disputes
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`and grievances’ and that would be of ‘no relevance to the public’s evaluation of the performance
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`of governmental agencies’” on the other, see id. (quoting Coszalter v. City of Salem, 320 F.3d
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`968, 973 (9th Cir. 2003) (quoting McKinley, 705 F.2d at 1114)). The court specifically rejected
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`the plaintiffs’ attempt to characterize their concerns about their supervisors’ competence and the
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`morale of the police force generally as issues of public concern as opposed to internal power
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`struggles. See id. at 710–11.
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`Case 3:13-cv-00270-RCJ-VPC Document 53 Filed 01/08/15 Page 12 of 13
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`The Court made several further points. First, it is the content of the speech that matters,
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`not a plaintiff's “post hoc characterizations” of the grievance. Id. Second, conclusory allegations
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`of the “negative” effects of a supervisor’s behavior are insufficient; a plaintiff must allege
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`concrete negative results. Id. at 712–13. Third, the Court noted that Desrochers’s claim that his
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`speech was an issue of public concern was seriously undermined by the fact his grievance was
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`purely internal. Id. at 714–15. The court summarized its holding by stating that “while the First
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`Amendment invests public employees with certain rights, it does not empower them to
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`constitutionalize the employee grievance.” Id. at 718 (quoting Garcetti, 547 U.S. at 420). By
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`contrast, where an employee’s speech is in the form of public trial testimony, for example, the
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`employee is protected from retaliation. See Clairmont v. Sound Mental Health, 632 F.3d 1091,
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`1104 (9th Cir. 2011) (distinguishing Desrochers).
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`Plaintiff alleges complaining to an outside ethics commission, the Attorney General, and
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`the Secretary of State that Newell had been signing documents that Nevada law required Plaintiff
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`(the City Clerk) to sign. (See Huntsberger Dep. 175–88). The Court finds that these were
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`external communications on a matter of public concern that did not concern any internal
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`employee discipline. Plaintiff was not required to make these reports as an employee. Plaintiff
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`has produced enough evidence of retaliation in substantial part because of this protected speech
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`to avoid summary judgment.
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`D.
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`Retaliation Under NRS Section 281.641
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`This is the claim under the state “whistleblower” statute. Defendants argue that a claim
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`for retaliation for reporting improper governmental activity under the statute cannot lie if the
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`complained-of activity was not in fact improper, and that Defendants’ actions in bypassing
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`Plaintiff’s signature were not in fact improper because the City of Yerington is governed by
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`Chapter 268, not by Chapter 266 as Plaintiff previously supposed, and Chapter 268 does not
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`Case 3:13-cv-00270-RCJ-VPC Document 53 Filed 01/08/15 Page 13 of 13
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`require the City Clerk to attest or sign contracts. The Court disagrees. Persons making incorrect
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`claims are protected from retaliation under the statute. Simoniam v. Univ. & Cmty. Coll. Sys. of
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`Nev., 128 P.3d 1057, 1064 (Nev. 2006). The Court will not grant summary judgment on this
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`claim.
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`E.
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`Retaliation Under Title VII and NRS Section 613.330
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`Defendants argue that there is no evidence of protected activity before Plaintiff’s
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`termination. It is not disputed that Plaintiff filed her Charge of Discrimination in August 2011,
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`long after she was terminated in May of that year. (See Charge of Discrimination; Huntsberger
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`Dep. 224). But Plaintiff alleges her termination was in retaliation for having complained of her
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`treatment to “Human Resources,” not for having filed the Charge of Discrimination. (See Compl.
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`¶¶ 14, 53, 58). By “Human Resources,” Plaintiff appears to mean Sheema Shaw. The Court
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`finds that there is a genuine issue of material fact whether Plaintiff’s complaint to Ms. Shaw
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`concerning the misogynistic comments was the basis for Plaintiff’s termination. Although there
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`is no evidence of any complaint having been communicated directly or indirectly to Homestead
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`or Newell, it is a fair inference that they knew about the complaint.
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`CONCLUSION
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`IT IS HEREBY ORDERED that the Motion for Summary Judgment (ECF No. 32) is
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`GRANTED IN PART and DENIED IN PART. The motion is granted as to a national-origin-
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`based hostile workplace environment under Title VII and NRS section 613.330 but is otherwise
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`denied.
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`IT IS SO ORDERED.
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`Dated this 16th day of December, 2014.
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`_____________________________________
`
` ROBERT C. JONES
`
` United States District Judge
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