Aoun v. City of Las Vegas

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA — 3 — VANESSA AOUN, ) 4 ) Plaintiff, ) Case No.: 2:22-cv-01751-GMN-EJY 5 ) vs. ) ORDER GRANTING MOTION FOR — 6 — ) SUMMARY JUDGMENT CITY OF LAS VEGAS, 7 ) ) Defendant. 8 ) 9 Pending before the Court is the Motion for Summary Judgment, (ECF No. 25), filed by 10 Defendant City of Las Vegas. Plaintiff Vanessa Aoun filed a Response, (ECF No. 27), to 11 which Defendant filed a Reply, (ECF No. 28). For the reasons discussed below, the Court 12 GRANTS Defendant’s Motion for Summary Judgment. 13 I. BACKGROUND 14 This case arises from Defendant’s alleged discrimination and retaliation against its city 15 park employee, Plaintiff Vanessa Aoun. (See generally Compl., ECF No. 1). Plaintiff began 16 her employment with the City in 2003 and worked in various positions until her recent 17 termination in September 2023. (Resp. 2:3–5, ECF No. 27). Plaintiff, a 61-year-old woman 18 with a “bad back” and “bad knees,” alleges that the City discriminated against her based on her 19 age, gender, and disability. (Pl.’s Dep. 37:4–12, 76:1–9, Ex. B to Mot. Summ. J., ECF No. 2520 11). Due to her health complications, Plaintiff occasionally used a walker at work and had a 21 handicap placard in her car. (Id. 19:7–22:15; 76:1–77:5). 22 Plaintiff also had two surgeries during the relevant time period. In October 2021, 23 Plaintiff took 12 weeks of leave for knee surgery under the Family and Medical Leave Act 24 (“FMLA”) while working for the City. (Id. 82:19–83:2); (Director Ford Dep. ¶ 31, Ex. A to 25 Mot. Summ. J., ECF No. 25-1). When the 12 weeks of FMLA leave expired at the end of 1 December, the City granted Plaintiff several additional weeks of leave without pay, until 2 February 16. (Id. ¶¶ 31–33). And in January 2022, Plaintiff had back surgery to implant a 3 spinal cord stimulator. (Pl.’s Dep. 82:19–83:2, Ex. B to Mot. Summ. J.). On February 18, 4 Plaintiff’s doctor released her back to work with temporary restrictions, which were lifted on 5 March 22, 2022. (Director Ford Dep. ¶ 36–38, Ex. A to Mot. Summ. J., ECF No. 25-1). 6 A. Plaintiff’s Work Performance and Discipline 7 Plaintiff worked as an “Administrative Support Assistant” whose primary job was 8 processing timecards for department employees. (Pl.’s Dep. 63:25–64:7; 94:21–25, Ex. B to 9 Mot. Summ. J.). Defendant kept track of the errors Plaintiff made while processing timecards 10 and submitted a report demonstrating that from July 2020 to July 2021, while Plaintiff was 11 responsible for processing 107 timecards, her error rates were between 15% to 96%. (Timecard 12 Errors, Ex. A-2 to Mot. Summ. J., ECF No. 25-3). This caused Plaintiff’s coworkers and 13 supervisors to review her work, identify errors, and make corrections. (Supervisor Quintana 14 Dep. 23:5–28:24, Ex. C to Mot. Summ. J., ECF No. 25-12). In July 2020, Plaintiff received an 15 oral reprimand because her timekeeping error meant that an employee’s shift was not covered, 16 so several parks were delayed in opening and maintenance had to be deferred. (Oral 17 Reprimand, Ex. A-3 to Mot. Summ. J., ECF No. 25-4); (Director Ford Dep. ¶¶ 18–19, Ex. A to 18 Mot. Summ. J.). 19 Plaintiff had multiple meetings with supervisors to discuss her job duties and errors and 20 received additional training, workflow charts, checklists, and screenshots of the timekeeping 21 software. (Supervisor Quintana Dep. 23:11–27:20, 36:5–37:21, Ex. C to Mot. Summ. J.); 22 (Supervisor Meeting Dates, Ex. A-4 to Mot. Summ. J., ECF No. 25-5). At the end of 2020, 23 Plaintiff’s former supervisor removed a percentage of the timecard work that Plaintiff was 24 responsible for, extended deadlines, and reassigned her other tasks so that Plaintiff could devote — 25 — 1 more time to processing timecards. (Supervisor Quintana Dep. 36:5–37:21, Ex. C to Mot. 2 Summ. J.). 3 Plaintiff continued making mistakes, however, so the city began imposing disciplinary 4 action under the Collective Bargaining Agreement. (Id. 20:8–22). In August 2020, Plaintiff 5 received a written reprimand. (Written Reprimand, Ex. A-5 to Mot. Summ. J., ECF No. 25-6). 6 Plaintiff commented that she accepted responsibility for her mistakes and would “diligently 7 strive to not make mistakes.” (Id.). But, due to continued errors, she was placed on a 8 Performance Improvement Plan in December 2020 with the goal of reducing her error rate to 9 5% or less. (Plan, Ex. A-6 to Mot. Summ. J., ECF No. 25-7). 10 In August 2021, the City informed Plaintiff that it would be considering additional 11 discipline due to her ongoing poor work performance. (Not. of Discipline, A-7 to Mot. Summ. 12 J., ECF No. 25-8). The City explained that during the 60-day implementation of the 13 Performance Improvement Plan, plus a two-week extension, “there was not significant 14 improvement to qualify as successful.” (Id. at 3). And in the five months following the 60-day 15 plan, Plaintiff’s timecard error rates were between 14.95% and 96.26%. (Id.). The City 16 provided Plaintiff with union representation and issued a one-day suspension due to her poor 17 performance. (Supervisor Quintana Dep. 44:4–16, Ex. C to Mot. Summ. J.); (Not. Suspension, 18 A-8 to Mot. Summ. J., ECF No. 25-10). Plaintiff did not file a grievance to challenge the 19 discipline. (Pl.’s Dep. 168:12–18, Ex. B to Mot. Summ. J.). 20 After the suspension, Plaintiff met with the City Manager to discuss her work 21 environment and supervisors’ conduct. (Ans. Interrogatory 7:1–3, Ex. 1 to Resp., ECF No. 2722 1). In her answers to Defendant’s interrogatory, Plaintiff states that she was subjected to “a 23 pattern of adverse and hostile conduct” from her supervisors. (Id. 6:9–10). She testified that 24 her managers treated her more harshly than other co-workers, even though she believed she had 25 the work skills to meet her employment expectations. (Id. 6:11–23). She met with Dr. Hibbler, 1 a city executive, and told Dr. Hibbler that she was being harassed at work and was worried 2 about retaliation based on her FMLA leave. (Id. 7:3–13). 3 Plaintiff was transferred to the Floyd Lamb Gatehouse for another employment position 4 in April 2022. (Supervisor Radke 18:22–22:21, Ex. D to Mot. Summ. J., ECF No. 25-13). 5 Plaintiff’s most recent supervisor, Ms. Radke, testified that the City transferred Plaintiff “to 6 meet its business needs” and believed the reassignment would improve Plaintiff’s timecard 7 error rate. (Id.). Plaintiff had previously told Radke that she wanted to work at the Floyd Lamb 8 Park as it was closer to her home. (Id.). The new role provided Plaintiff with supervision over 9 several hourly staff and oversight of cash handling and did not involve an adverse change in 10 pay, seniority, or status. (Pl.’s Dep. 170:3–171:21, Ex. B to Mot. Summ. J.). Plaintiff, 11 however, was upset by the involuntary transfer to the Gatehouse and believed it was done in 12 retaliation. (Resp. 5:25–6:1). She stated that the Gatehouse was an “inhospitable environment,” 13 and that a lack of sealed windows and doors allow dust, pollen, and animal dander to enter the 14 building. (Id.). 15 B. Charge of Discrimination 16 In June 2022, Plaintiff submitted a Charge of Discrimination to the Nevada Equal Rights 17 Commission. (Charge of Discrimination, Ex. E to Mot. Summ. J., ECF No. 25-14). On the 18 form, she indicated a date range of discrimination from March 2021 to March 2022. (Id.). In 19 the space used to describe the particulars of her discrimination, she focused on: (1) being “over20 supervised” in March 2021 due to her gender, (2) harassment by managers in June 2021, 21 (3) receiving a written discipline in August 2021, (4) her one-day suspension caused by 22 retaliation to her Human Resources complaints, (5) being told to report back to work or be 23 terminated after her surgeries, (6) her involuntary transfer to the Floyd Lamb Gatehouse in 24 April 2022 resulting in a “demotion in status and responsibilities.” (Id.). Plaintiff has agreed to 25 dismiss her state law claims of negligent supervision and intentional infliction of emotional 1 distress, and thus her remaining claims against Defendant involve discrimination in violation of 2 the Age Discrimination in Employment Act, Title VII of the Civil Rights Act, the Americans 3 with Disabilities Act, and Nevada law. (Compl. ¶¶ 14–17); (Resp. 22:14–16). 4 II. LEGAL STANDARD 5 The Federal Rules of Civil Procedure provide for summary adjudication when the 6 pleadings, depositions, answers to interrogatories, and admissions on file, together with the 7 affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant 8 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those that 9 may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 248 10 (1986). A dispute as to a material fact is genuine if there is a sufficient evidentiary basis on 11 which a reasonable fact-finder could rely to find for the nonmoving party. See id. “The amount 12 of evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury or 13 judge to resolve the parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., — 14 — 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253 , 15 288–89 (1968)). “Summary judgment is inappropriate if reasonable jurors, drawing all 16 inferences in favor of the nonmoving party, could return a verdict in the nonmoving party’s 17 favor.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008). A principal 18 purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” 19 Celotex Corp. v. Catrett, 477 U.S. 317 , 323–24 (1986). 20 In determining summary judgment, a court applies a burden-shifting analysis. “When 21 the party moving for summary judgment would bear the burden of proof at trial, it must come 22 forward with evidence which would entitle it to a directed verdict if the evidence went 23 uncontroverted at trial. In such a case, the moving party has the initial burden of establishing 24 the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. 25 Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474 , 480 (9th Cir. 2000) (quotation marks and 1 citation omitted). In contrast, when the nonmoving party bears the burden of proving the claim 2 or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to 3 negate an essential element of the nonmoving party’s case; or (2) by demonstrating that the 4 nonmoving party failed to make a showing sufficient to establish an element essential to that 5 party’s case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 6 U.S. at 323–24. If the moving party fails to meet its initial burden, summary judgment must be 7 denied and the court need not consider the nonmoving party’s evidence. See Adickes v. S.H. 8 Kress & Co., 398 U.S. 144 , 159–60 (1970). 9 If the moving party satisfies its initial burden, the burden then shifts to the opposing 10 party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. 11 Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, 12 the opposing party need not establish a material issue of fact conclusively in its favor. It is 13 sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the 14 parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors 15 Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). However, the nonmoving party “may not rely on 16 denials in the pleadings but must produce specific evidence, through affidavits or admissible 17 discovery material, to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404 , 18 1409 (9th Cir. 1991), and “must do more than simply show that there is some metaphysical 19 doubt as to the material facts,” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002). “The 20 mere existence of a scintilla of evidence in support of the plaintiff’s position will be 21 insufficient.” Anderson, 477 U.S. at 252 . In other words, the nonmoving party cannot avoid 22 summary judgment by “relying solely on conclusory allegations unsupported by factual data.” 23 See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go 24 beyond the assertions and allegations of the pleadings and set forth specific facts by producing 25 competent evidence that shows a genuine issue for trial. See Celotex Corp., 477 U.S. at 324 . 1 At summary judgment, a court’s function is not to weigh the evidence and determine the 2 truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249 . 3 The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn 4 in his favor.” Id. at 255 . But if the evidence of the nonmoving party is merely colorable or is 5 not significantly probative, summary judgment may be granted. See id. at 249–50. 6 III. DISCUSSION 7 Defendant presents three theories on summary judgment: (1) Plaintiff’s discrimination 8 claims fail under controlling law, (2) Plaintiff has not disclosed an expert to support her claims, 9 and (3) Plaintiff disclosed no computation of damages to support her claims. (Mot. Summ. J. 10 13:2–12). Plaintiff contends, among other things, that she “has been subjected to regular and 11 frequent acts of discrimination, harassment, intimidation, retaliation, threats, and unequal 12 treatment in an overall hostile work environment.” (Compl. ¶ 15).1 Because the Court finds 13 that no genuine issue of material fact exists in any of Plaintiff’s claims, the Court grants 14 summary judgment for Defendant on all claims. 15 A. Gender Discrimination Claims under Title VII and NRS 613.330 16 Plaintiff's first claim concerns gender discrimination in violation of Title VII and NRS 17 613.330. (Compl. ¶ 15). She states that she was victim to a hostile work environment because 18 of her gender. (Resp. 13:9–18).2 19 Title VII prohibits employment discrimination based on any of its enumerated grounds: 20 “‘race, color, religion, sex, or national origin.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 , — 21 — — 22 — 1 Plaintiff’s first claim for relief lumps together violations of the Age Discrimination in Employment Act, Title VII, the 23 Americans with Disabilities Act and “Nevada Law.” (Compl. ¶ 15). Plaintiff does not clarify which actions taken by Defendants pertain to which causes of action and makes broad statements referring to discriminatory conduct based on age, 24 gender, and disability. Because Plaintiff’s claims are not sufficiently clear to the Court based on the face of the Complaint, the Court will base its analysis on the arguments laid out in Plaintiff’s Response. — 25 — 2 Even though Plaintiff also alleges that she suffered unequal and disparate treatment, (Compl. ¶ 15), her Response clarifies that her gender discrimination Title VII claim relates to a hostile work environment and retaliation. (See Resp. 13:9–17:5). 1 (1993) (quoting 42 U.S.C. § 2000e–2(a)(1)). A prima facie case for a hostile work environment 2 under Title VII requires a plaintiff to show (1) she was subjected to verbal or physical conduct 3 because of her gender; (2) the conduct was unwelcome; and (3) the conduct “was sufficiently 4 severe or pervasive to alter the conditions of [her] employment and create an abusive work 5 environment.” Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864 , 871 (9th Cir. 2001); Apeceche 6 v. White Pine County, 615 P.2d 975, 977 (Nev. 1980) (finding NRS 613.330 claims subject to 7 the same standard as Title VII claims). Courts look to the totality of circumstances and 8 consider factors such as the “frequency of the discriminatory conduct; its severity; whether it is 9 physically threatening or humiliating, or a mere offensive utterance; and whether it 10 unreasonably interferes with an employee’s work performance.” Harris, 510 U.S. at 23 . A 11 plaintiff must show that a “reasonable person” would find the work environment “hostile or 12 abusive” and that the plaintiff in fact found it so. Westendorf v. W. Coast Contractors of Nev., 13 Inc., 712 F.3d 417, 421 (9th Cir. 2013). 14 Viewing the evidence in the light most favorable to Plaintiff, the instances of gender15 based conduct were not sufficiently severe or pervasive such that a reasonable person would 16 find the work environment to be hostile. In Plaintiff’s list of evidence demonstrating a hostile 17 work environment, she fails to claim that the close supervision of her work, critical statements, 18 or disciplinary actions had anything to do with her gender. (See Resp. 15:18–16:25). When 19 asked in her deposition whether anyone who worked for the City had made negative comments 20 about her gender, she replied, “I do not remember that specifically,” but also shared that in a 21 meeting, a co-worker made a comment before March 2020 that a male Administrative Support 22 Specialist could do the job better than her. (Pl.’s Dep. 58:7–20, 63:16–65:25. Ex. B to Mot. 23 Summ. J.). This single comment is not sufficiently severe or pervasive enough to alter the 24 conditions of Plaintiff’s employment and was made before the relevant time period in this 25 litigation. (See Resp. 2:20–21) (stating that her litigation focuses on conduct beginning in 1 2021). Accordingly, the Court GRANTS Defendant’s Motion for Summary Judgment on the 2 issue of gender discrimination. 3 B. Age Discrimination Claims 4 Plaintiff next alleges that Defendant violated the Age Discrimination in Employment 5 Act (“ADEA”) under a “disparate treatment” theory. (Resp. 17:4–9). “Under a ‘disparate 6 treatment’ theory of discrimination, a plaintiff in an ADEA case can establish age 7 discrimination based on: (1) ‘circumstantial evidence’ of age discrimination; or (2) ‘direct 8 evidence’ of age discrimination. Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1049 (9th 9 Cir. 2012). Claims based on circumstantial evidence are analyzed under the burden-shifting 10 framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). If an employee can 11 establish a prima facie case of age discrimination, the burden shifts to the employer to show a 12 legitimate and non-discriminatory reason for the disputed adverse action. Id. And if the 13 employer satisfies that burden, it shifts back to the employee to prove that the employer’s 14 reason for the action was pretext for unlawful discrimination. Id. To establish a prima facie 15 case of discrimination, a plaintiff must prove four elements: (1) she was at least forty years old; 16 (2) she was performing her job satisfactorily; (3) she was discharged; and (4) she was “either 17 replaced by [a] substantially younger [employee] with equal or inferior qualifications or 18 discharged under circumstances otherwise giving rise to an inference of age discrimination.” Id. 19 Defendant, the moving party, has met its burden by presenting evidence to negate an 20 essential element of the prima face case: that Plaintiff was performing her job satisfactorily. 21 Defendant attached Plaintiff’s timecard error report showing that from July 2020 to July 2021, 22 Plaintiff’s error rates ranged between 15% to 96%. (Timecard Errors, Ex. A-2 to Mot. Summ. 23 J.). To address this error rate, Defendant set up meetings with supervisors and provided 24 additional job training. (Supervisor Quintana Dep. 23:11–23, 36:5–37:21, 27:7–20, Ex. C to 25 Mot. Summ. J.); (Supervisor Meeting Dates, Ex. A-4 to Mot. Summ. J.). When her error rates 1 continued, Plaintiff was subject to discipline including an oral reprimand, a written reprimand, 2 a performance improvement plan, and a one-day suspension. This documented poor 3 performance leads the Court to conclude that Plaintiff’s discipline, and ultimate termination, 4 was not pretextual for age discrimination, but rather based on her performance. 5 The burden now shifts to Plaintiff to establish that a genuine issue of material fact exists 6 and that the “poor performance” reason given by the City was pretext for discrimination. She 7 cannot rely “solely on conclusory allegations unsupported by factual data.” See Taylor v. List, — 8 — 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, she must go beyond the assertions and 9 allegations of the pleadings and set forth specific facts by producing competent evidence. See 10 Celotex Corp., 477 U.S. at 324. In her Response, Plaintiff states only that “it is clear that for 11 twenty years of consistent City employment, this duration of her tenure indicates overall 12 satisfactory performance, which was only recently cut short by the City’s termination action.” 13 (Resp. 17:23–25). Plaintiff did not cite or attach specific evidence demonstrating her overall 14 satisfactory performance. 15 Plaintiff’s testimony relating to age discrimination consists of a meeting in which 16 Plaintiff, not her supervisors, brought up her age when her work performance was criticized, in 17 addition to two comments made by co-workers. Plaintiff testified that in July 2021, she was in 18 a yearly reporting meeting with her supervisors that consisted of them criticizing her work. 19 (Pl.’s Dep. 41:3–21, Ex. B to Mot. Summ. J). Plaintiff told her supervisors that she had an 20 exemplary record in past jobs and didn’t understand how she could go from being a “great 21 employee” to a “bad employee” in the one year that she worked in her new department. (Id.). It 22 was in this context that Plaintiff told them her age. (Id.). She also testified that one co-worker 23 ran down a hallway screaming about her age and maiden name, and a second co-worker, who 24 supervised her for one month, told Plaintiff that she reminded the co-worker of her mother. (Id. 25 44:11–49:25; 58:1–60:13). 1 This evidence alone does not present a genuine issue for trial. Plaintiff broadly states 2 that she has “been unfairly accused of work performance problems which are untrue and 3 unfounded all in an effort to continually discipline me . . . .” (Ans. Interrogatory 8:9–11, Ex. 1 4 to Resp.). But again, these conclusory allegations are not supported by additional factual data 5 or evidence. Therefore, the Court GRANTS Defendant’s Motion for Summary Judgment as to 6 the ADEA claim. 7 C. Disability Discrimination Claims 8 A plaintiff bears the burden of proving that he or she is disabled within the meaning of 9 the Americans with Disabilities Act (“ADA”). Wong v. Regents of University of California, 410 10 F.3d 1052, 1063 (9th Cir. 2005). “In order to qualify for relief under the ADA, the plaintiff 11 must show that: (1) she is a disabled person within the meaning of the statute; (2) she is 12 qualified, with or without reasonable accommodation, to perform the essential functions of the 13 job she holds or seeks; and (3) that she suffered an adverse employment action because of her 14 disability.” Braunling v. Countrywide Home Loans Inc., 220 F.3d 1154, 1156 (9th Cir. 2000). 15 The ADA defines “disability” as “(A) a physical or mental impairment that substantially limits 16 one or more of the major life activities of such individual; (B) a record of such an impairment; 17 or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102 (2). 18 Courts consider the following factors when determining whether an individual is 19 substantially limited in a major life activity: “(i) The nature and severity of the impairment; 20 (ii) The duration or expected duration of the impairment; and (iii) The permanent or long-term 21 impact, or the expected permanent or long term impact of or resulting from the impairment.” 29 22 CFR § 1630.2 (j)(2). The appendix states, “temporary, non-chronic impairments of short 23 duration, with little or no long term or permanent impact, are usually not disabilities. Such 24 impairments may include, but are not limited to, broken limbs, sprained joints, concussions, 25 appendicitis, and influenza.” 29 CFR Part 1630 App., § 1630.2(j). 1 Plaintiff’s Complaint and Response are unclear regarding which disability and adverse 2 action this claim centers on. It appears from Plaintiff’s Charge of Discrimination that this 3 claim focuses on the events that took place from October 2021 to April 2022, when Plaintiff 4 took FMLA leave for back and knee surgery. Plaintiff wrote, “[i]n January 2022, I was told to 5 report back to work or be terminated. I complained to HR about disability discrimination. I 6 was given a fitness for duty Workers’ Comp form to complete, which my doctor completed. I 7 was released back to work with work restrictions.” (Charge of Discrimination, Ex. E to Mot. 8 Summ. J.). The City granted Plaintiff’s request for 12 weeks of FMLA leave from October 1, 9 2021, to December 29, 2021, and then extended the leave until February 14, 2022, upon her 10 request. (Pl.’s Dep. 183:17–20, Ex. B to Mot. Summ. J.); (Director Ford Dep. ¶ 31, Ex. A to 11 Mot. Summ. J.). 12 On February 18, 2022, Plaintiff’s doctor released her to work with temporary 13 restrictions. (Director Ford Dep. ¶ 36, Ex. A to Mot. Summ. J.). About a month later, on March 14 22, 2022, Plaintiff’s doctor released her for full-duty work, without restrictions. (Id. ¶ 38); 15 (Charge of Discrimination, Ex. E to Mot. Summ. J.). In April, Plaintiff was transferred to the 16 Floyd Lamb Gatehouse. (Charge of Discrimination, Ex. E to Mot. Summ. J.). The Court 17 assumes that the relevant “adverse action” was Plaintiff’s transfer, which she was unhappy 18 with. (See Resp. 4:7–11). 19 Defendant meets their initial burden of refuting an essential element in Plaintiff’s claim: 20 that her health problems qualify as a “disability” under the ADA. Defendant presents evidence 21 that Plaintiff’s back and knee problems were temporary impairments. (Mot. Summ. J. 19:6– 22 20:12). Plaintiff testified that she occasionally used a walker at work, but that it depended on 23 the day. (Pl.’s Dep. 77:15–78:4, Ex. B to Mot. Summ. J.). And while she underwent knee and 24 back surgeries requiring four months of leave, she was released back to work without 25 restrictions in March 2022, before the Gatehouse transfer. (Id. 184:17–20). Thus, Plaintiff’s 1 health condition appears more similar to a broken limb, for which one receives surgery and has 2 a recovery period but is able to return to work without further restrictions. 3 Plaintiff has not demonstrated that a material issue of fact exists as to whether her health 4 condition qualified as a disability. She did not offer evidence that her knee or back surgeries 5 were more than a temporary condition that she recovered from by March 2022. On the 6 contrary, she stated that her doctor released her back to work without restrictions. And it is 7 Plaintiff’s burden to prove she is disabled under the ADA. But even if her condition was not 8 temporary, Plaintiff did not allege in her Complaint, nor argue in her Response, that her 9 impairment limited a major life activity in a substantial way. Thus, the Court GRANTS 10 Defendant’s Motion for Summary Judgment as to this claim. 11 D. Retaliation under Title VII 12 To establish a prima facie case of retaliation under Title VII, a plaintiff must prove that 13 (1) she engaged in a protected activity, (2) her employer subjected her to adverse employment 14 action, and (3) there was a causal link between the protected activity and the employer’s action. 15 Payne v. Norwest Corp., 113 F.3d 1079, 1080 (9th Cir. 1997). If the employee establishes a 16 prima facie case, “the burden shifts to the employer to present legitimate, non-discriminatory 17 reasons for the adverse employment action.” Nagar v. Found. Health Sys., Inc., 57 F. App’x 18 304, 306 (9th Cir. 2003). “Once the employer meets this burden, the plaintiff must demonstrate 19 a genuine issue of material fact as to whether the reason advanced by the employer was a 20 pretext for retaliation.” Id. “Only then does the case proceed beyond summary judgment.” Id. 21 In this case, assuming Plaintiff established a prima facie case of retaliation when she was 22 disciplined for poor performance and ultimately transferred to the Gatehouse, the City met its 23 burden of showing that it had a legitimate, nonretaliatory reason for transferring her. Plaintiff’s 24 former supervisor testified that Plaintiff was progressively disciplined for poor work 25 performance, as allowed under the Collective Bargaining Agreement, only after her supervisors 1 spent additional effort and hours to re-train her on timecard processing. (Supervisor Quintana 2 Dep. 20:8–22, 23:11–27:20, 36:5–37:21, Ex. C to Mot. Summ. J.). The City attached evidence 3 of Plaintiff’s consistent error rates, as well as the oral reprimand, written reprimand, 4 performance improvement plan, and one-day suspension. 5 Radke, Plaintiff’s most recent supervisor, testified that the City moved Plaintiff to the 6 Gatehouse in a lateral transfer to meet its business needs and lessen Plaintiff’s workload. 7 (Supervisor Radke 18:22–22:21, Ex. D to Mot. Summ. J.). Radke also testified that Plaintiff 8 requested to be transferred to Floyd Lamb Park because it was closer to her home. (Id. 19:24– 9 25). When asked whether anyone else was considered for the transfer to the Floyd Lamb 10 Gatehouse, Radke replied that it had to be an Administrative Support Assistant (“ASA”), that 11 there were only two ASAs in the department, and that the other ASA handled recreation, not 12 parks. (Id. 20:19–21:9). That left Plaintiff as the only ASA already working in parks, and 13 Plaintiff told Radke that she loved Floyd Lamb Park, so Radke believed “that would be an ideal 14 place for her.” (Id.). 15 Plaintiff argues that the City’s actions were pretextual and that Defendant transferred her 16 to the Gatehouse because Plaintiff made complaints about a hostile work environment and fears 17 of retaliation. (Resp. 12:8–19). Because Plaintiff does not have direct evidence that the City’s 18 motive was pretextual, her claim is based on circumstantial evidence. When a claim of pretext 19 is based on circumstantial evidence, it must be “specific and substantial” to survive summary 20 judgment. See Bergene v. Salt River Project Agric. Improvement & Power Dist., 272 F.3d 21 1136, 1142 (9th Cir. 2001). The evidence must either “directly . . . persuad[e] the court that a 22 discriminatory reason more likely motivated the employer or indirectly . . . show[ ] that the 23 employer's proffered explanation is unworthy of credence.” Texas Dep’t of Cmty. Affairs v. 24 Burdine, 450 U.S. 248, 256 (1981). — 25 — 1 Plaintiff’s evidence fails to establish a triable issue of fact as to whether the City’s 2 reasons for retaliating against her were pretextual. Plaintiff’s argument that the City disciplined 3 her and ultimately moved her to the Gatehouse relies only on the temporal proximity between 4 her return from FMLA leave and the transfer. (Resp. 11:15–12:19). Timing alone, however, is 5 insufficient to show pretext when the record supports Defendant’s claims that she was 6 disciplined for her poor work performance and transferred to another building based on the 7 city’s business needs and Plaintiff’s park experience. See Hashimoto v. Dalton, 118 F.3d 671 , 8 680 (9th Cir. 1997) (recognizing that temporal proximity does not necessarily “refute the 9 government’s proffered legitimate reasons” for an action); Coszalter v. City of Salem, 320 F.3d 10 968 , 977–78 (9th Cir. 2003) (holding that courts should not consider the timing of an action 11 without regard to its factual setting). The Court has considered Plaintiff’s evidence and 12 concludes that it does not undercut the City’s proffered reasons for disciplining Plaintiff and 13 transferring her to another building. Accordingly, the Court also GRANTS Defendant’s 14 Motion for Summary Judgment as to Plaintiff’s retaliation claim. 15 IV. CONCLUSION 16 IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment, (ECF 17 No. 25), is GRANTED. 18 The Court kindly directs the Clerk of Court to close the case and enter judgment for 19 Defendant City of Las Vegas. 20 DATED this __1_2__ day of January, 2024. — 21 — 22 ___________________________________ Gloria M. Navarro, District Judge — 23 — UNITED STATES DISTRICT COURT — 24 — — 25 —