Opinion
3:21-cv-00352-MMD-CSD
02-27-2024
LUCERO SANCHEZ, Plaintiff, v. RENOWN HEALTH, Defendant.
ORDER
MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE.
I. SUMMARY
Plaintiff Lucero Sanchez sued her employer, Defendant Renown Health, under Title VII of the Federal Civil Rights Act of 1964, as amended, 42 U.S.C. § 1981, 2000e, et seq. (“Title VII”) and the Americans With Disabilities Act of 1990, 42 U.S.C. § 12131, et seq. (“ADA”) for allegedly discriminating against her and subjecting her to a hostile work environment based on her national origin, failing to adequately accommodate her after she injured both knees at work, and retaliating against her when she complained about the way Defendant treated her-inflicting emotional distress in the process. (ECF No. 5.) Before the Court is Defendant's motion for summary judgment (ECF No. 69 (“Motion”)), along with two related motions to seal exhibits the parties submitted with their briefing on the Motion (ECF Nos. 67, 78). The Court grants the motions to seal. And as further explained below, the Court grants in part, and denies in part, the Motion. To preview, the Court will deny the Motion as to the hostile work environment theory of Plaintiff's Title VII claim, Plaintiff's ADA claim, and Plaintiff's Title VII retaliation claim, but grant the Motion as to the disparate treatment discrimination theory of Plaintiff's Title VII claim and Plaintiff's claim for intentional infliction of emotional distress (“IIED”).
Plaintiff responded (ECF No. 77) and Defendant replied (ECF No. 80).
Both parties seek to seal exhibits attached to their briefing on the Motion containing Plaintiff's medical records and sensitive medical information. (ECF Nos. 67, 78.) Plaintiff does not oppose Defendant's motion to seal. (ECF No. 71.) Defendant did not file a response to Plaintiff's motion to seal, and granting that motion would be consistent with granting Defendant's motion to seal. The Court finds that compelling reasons exist to support maintaining Plaintiff's medical records and sensitive medical information under seal, and accordingly grants both motions. See, e.g., Nall v. Adamson, Case No. 3:19-cv-00054-MMD-CLB, 2021 WL 2301912, at *1 (D. Nev. June 4, 2021) (granting motion to seal medical records attached as exhibits to a motion for summary judgment after noting that “[t]his court, and others within the Ninth Circuit, have recognized that the need to protect medical privacy qualifies as a ‘compelling reason' for sealing records, since medical records contain sensitive and private information about a person's health.”) (citations omitted).
II. BACKGROUND
The following facts are undisputed unless otherwise noted. The Court also only describes facts that are pertinent to its discussion of the Motion. Plaintiff still works for Defendant, and has been working for Defendant since 1993. (ECF Nos. 69 at 2, 77 at 12.) She began working at Defendant's South Meadows hospital in 1998. (ECF No. 69 at 2.) She currently works at the same facility as a unit clerk in the surgery department. (Id.) But this case focuses on her tenure working as a catering coordinator and cashier in the cafe of the South Meadows hospital.
Plaintiff started working as a catering coordinator at South Meadows in 2005. (Id. at 3.) By 2010, her job title was FNS (Food and Nutrition Services) Coordinator. (Id.) The parties dispute the precise job duties she performed, and whether they were primarily desk-based or primarily involved moving and serving food, but agree that her job duties included catering events, serving food, cleaning up, ordering food, keeping track of expenses, and depositing cash at the bank. (Id. at 3-4; see also ECF No. 77 at 2.) Plaintiff was the only employee at South Meadows with the job title FNS Coordinator. (ECF No. 69 at 4.)
In 2014, Plaintiff reported to German Pineda, the FNS Supervisor at South Meadows. (Id. at 4.) Pineda supervised more than 20 employees. (Id.) Pineda, in turn, reported to Cathleen West. (Id.) West oversaw the FNS department for two other facilities in addition to South Meadows. (Id.) In addition, Christina Vargas, Director of the FNS Department, and Justin Bart, FNS Supervisor, oversaw the FNS department at Defendant's flagship Renown Regional Medical Center-and their job duties periodically brought them to South Meadows. (Id.) Suzanne Oetjen was Defendant's Director of Human Resources Business Partners at the time. (Id. at 7.) Jessi Cohen (f/k/a Russell) worked with Oetjen as a Senior Human Resources Business Partner. (Id. at 4-5.)
In November 2014, West was at a meeting with Plaintiff, Pineda, Vargas, and Bart, among other people. (ECF No. 77-4.) As they were all leaving that meeting, West heard Vargas tell Bart, “I hate fucking Mexicans.” (Id.) West complained to Russell and then Oetjen about Vargas' comment after this meeting, and she contends neither of them ever followed up with her. (Id.) Defendant fired West in February 2015. West contends it was because she complained about Vargas' comment and an employee she supervised falsified records regarding refrigerator temperatures (id.); Defendant contends it was “due to the forgery of company records” (ECF No. 69 at 4).
After West was fired, Vargas was promoted to the Director position overseeing the FNS departments at all of Defendant's facilities. (Id.) Shortly thereafter, Bart and Vargas noticed that Pineda was perhaps spending too much on food at the South Meadows facility, so they opened an investigation into him with Russell's help. (Id. at 4-5.) They finished their investigation convinced that Pineda had been ordering expensive items and using them for his personal catering business. (Id. at 5.) They accordingly fired him in June 2015. (Id.)
That same month, Vargas cornered Plaintiff in Plaintiff's office and demanded the keys to Plaintiff's safe, and poked her hand in taking Plaintiff's keys from her. (ECF No. 77 at 3.) Plaintiff complained to Oetjen about this incident. (Id.) Oetjen recalls receiving this and other complaints about Vargas in 2014 and 2015. (Id.) Plaintiff contends that Vargas continued harassing her until Vargas resigned in lieu of being fired in May 2017. (ECF No. 69 at 9.)
In July 2016, Plaintiff tripped over a cord at work and fell on both of her knees. (Id. at 14.) Her knees were very swollen, and she was treated at Defendant's occupational health department the next day. (ECF No. 77 at 6.) She was released to light duty work, with restrictions on how much she could carry and how long she should stand before sitting again, on August 4, 2016. (Id.) The occupational health department then released her to full duty on August 11, 2016, but again placed Plaintiff on light duty on August 18, 2016. (Id.) Because her knees were still bothering her in November 2016, she went to see Dr. James Sobiek. (Id. at 7.) Dr. Sobiek imposed lifting restrictions on Plaintiff in April and May of 2017, and by November 2017, he determined that Plaintiff was permanently disabled in her left knee. (Id.) In the intervening months, he had also operated on Plaintiff's right knee. (ECF No. 69 at 17.)
Meanwhile, in August 2016, Defendant gave Plaintiff a chair to sit in as an accommodation for her knee injury. (ECF No. 68-1 (sealed) at 8.) And in January 2017, Defendant “decided to eliminate the FNS Coordinator position [and] formally transferred Plaintiff to the [C]ashier position [.]” (ECF No. 69 at 12.) This change in job title came with a lower rate of hourly pay. (ECF No. 77-17 at 2.) But in September 2017, some of Defendant's other employees observed Plaintiff working, and noted that she was on her feet a lot, and either was not using-or was not able to use-the chair. (ECF No. 78-11 at 3.)
In October 2017, Plaintiff's counsel notified Defendant that Plaintiff was working outside the restrictions imposed on her by Dr. Sobiek. (ECF No. 69 at 18-19.) Defendant determined at this time that it could not accommodate Plaintiff's restrictions in the Cashier position. (Id. at 19.) In November 2017, to accommodate her restrictions, Defendant offered Plaintiff the unit clerk position in the surgery department she currently holds-a sedentary job-and Plaintiff accepted. (Id.) Plaintiff has been working that job ever since. (Id.)
“In January 2018, Plaintiff filed a Charge of Discrimination with the Nevada Equal Rights Commission (“NERC”) alleging that she was discriminated against on the basis of her national origin (Hispanic), age, and disability, denied a reasonable accommodation, and subjected to retaliation.” (ECF No. 69 at 20; see also ECF No. 69-25 (the “Charge”).) On June 2, 2021, the United States Equal Employment Opportunity Commission (“EEOC”) issued Plaintiff a ‘right to sue' letter. (ECF No. 77-25.)
Plaintiff filed this case in August 2021. (ECF No. 1.) In her operative, amended complaint, she alleges four claims: (1) racial discrimination/hostile work environment under Title VII; (2) violation of the ADA; (3) retaliation; and (4) IIED. (ECF No. 5.)
III. DISCUSSION
Defendant moves for summary judgment on each of Plaintiff's four claims. The Court addresses the Motion as to each claim, in turn, below.
A. Discrimination and Hostile Work Environment Claim
As to the discrimination theory of Plaintiff's Title VII claim, Defendant argues that Plaintiff cannot meet her initial burden to show that similarly situated employees were treated more favorably than her when she was demoted to Cashier from FNS Coordinator because no other employees held the FNS Coordinator position. (ECF No. 69 at 22.) Plaintiff does not directly respond to this argument, instead focusing on the hostile work environment theory of her Title VII claim (ECF No. 77 at 19-20), later arguing that her demotion establishes one element of her Title VII retaliation claim (id. at 24-26), and arguing that she was not demoted for legitimate reasons because Defendant's evidence proffered to explain the demotion tends to show nothing more than post-hoc rationalization of a retaliatory demotion (id. at 27-29). Defendant highlights in reply that Plaintiff does not point to any similarly situated employees who were treated more favorably than her. (ECF No. 80 at 10.)
Plaintiff not only does not point to any evidence that similarly situated employees were treated more favorably than her; she does not even respond to Defendant's argument about it. Defendant is accordingly entitled to summary judgment on Plaintiff's Title VII claim to the extent it is based on a disparate treatment discrimination claim premised on her demotion. See Weil v. Citizens Telecom Servs. Co., LLC, 922 F.3d 993, 1004 (9th Cir. 2019) (affirming the district court's grant of summary judgment to the defendant on a Title VII claim based on the defendant's termination in part because the plaintiff “failed to produce evidence of a similarly situated employee who displayed similar conduct”); Leong v. Potter, 347 F.3d 1117, 1124 (9th Cir. 2003) (affirming the district court's finding that the plaintiff “failed to establish a prima facie case of discrimination because he could not provide evidence that similarly situated employees were treated more favorably than [he] was treated”); Rutenschroer v. Starr Seigle Commc'ns, Inc., 484 F.Supp.2d 1144, 1157 (D. Haw. 2006) (granting the defendant's summary judgment claim as to the plaintiff's disparate treatment claim where she “failed to meet the minimal burden of establishing that she was treated differently than other similarly-situated employees from outside her protected class”); Harris v. City of Fresno, 625 F.Supp.2d 983, 1003 (E.D. Cal. 2009) (“Plaintiff has not demonstrated, nor even made any attempt to show, that he was similarly situated in material respects to the candidate selected[.]”).
As to the hostile work environment aspect of Plaintiff's Title VII claim, Defendant argues that none of the alleged harassment Plaintiff was subjected to was related to her race, and the alleged harassment was insufficiently severe or pervasive to constitute a cognizable claim for harassment. (ECF No. 69 at 22-24.) Plaintiff counters that her former supervisor, Vargas, was hostile to her and told other employees in meetings that she ‘hated Mexicans.' (ECF No. 77 at 19.) Plaintiff further argues that another one of her supervisors who also reported to Vargas, Pineda, told her that Vargas told him not to hire Hispanics because they are ‘lazy,' and another time threw a radio playing Spanish-language music into the trash. (Id.) Plaintiff accordingly argues that these details tinged all of Vargas' hostile behavior towards Plaintiff with racial animus, most notably an incident where Vargas poked Plaintiff's hand while demanding and then taking the keys to a safe that Plaintiff used at work. (Id. at 19-20.) On balance, the Court agrees with Plaintiff.
Plaintiff's pertinent portion of her response does not comply with LR IA 7-3(e), which provides, “References to exhibits or attachments to documents must include citations to the specific page(s) being referenced.” Indeed, Plaintiff's response describes evidence in general terms without providing any citations to the record. (ECF No. 77 at 19-20.) The Court admonishes Plaintiff's counsel regarding the need to comply with the local rules.
“An employer is liable under Title VII for conduct giving rise to a hostile environment where the employee proves (1) that [s]he was subjected to verbal or physical conduct of a harassing nature, (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Arizona ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189, 1206 (9th Cir. 2016) (citations omitted). “In evaluating motions for summary judgment in the context of employment discrimination, [the United States Court of Appeals for the Ninth Circuit has] emphasized the importance of zealously guarding an employee's right to a full trial, since discrimination claims are frequently difficult to prove without a full airing of the evidence and an opportunity to evaluate the credibility of the witnesses.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir. 2004).
Moreover, “if racial hostility pervades a workplace, a plaintiff may establish a violation of Title VII, even if such hostility was not directly targeted at the plaintiff.” Id. at 1117. Plaintiff accordingly does not need to establish that Vargas told her she ‘hated Mexicans.' See id. And Plaintiff has proffered West's declaration, who swears that she was at a meeting with Plaintiff, Vargas, Justin Bart, and others in approximately November 2014. (ECF No. 77-4.) As they were all leaving that meeting, West heard Vargas tell Bart, “I hate fucking Mexicans.” (Id.) This tends to show that Vargas subjected Plaintiff to a hostile workplace based on her national origin, because-particularly drawing all inferences in Plaintiff's favor, see Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986)-the Court can reasonably infer that Vargas made other comments of a national origin-harassing nature around Plaintiff if she felt comfortable making such a comment leaving a meeting that Plaintiff attended. Additionally, Plaintiff testified at her deposition that she heard Vargas say that she did not like Mexicans at some point. (ECF No. 69-2 at 80.) It is accordingly reasonable to infer that any hostility directed at Plaintiff by Vargas was based on Plaintiff's national origin.
Defendant also does not dispute that “it received reports of Vargas being mean, unkind, and condescending to others with whom she worked[,]” and notes that Vargas resigned from her employment in lieu of termination because she did not correct her behavior. (ECF No. 80 at 3-4; see also ECF No. 78-12 (sealed) at 4 (finding that other employees felt harassed by Vargas as well).) Taken together, Defendant's concession that Vargas harassed others and West's declaration to the effect that Vargas said she ‘hated Mexicans,' show there is at least a genuine factual dispute precluding summary judgment that Vargas subjected Plaintiff to a hostile working environment based on her national origin.
Plaintiff also proffers evidence tending to show that Vargas subjected her to unwelcome verbal or physical conduct of a harassing nature. Plaintiff specifically highlights the incident where Vargas demanded Plaintiff's keys from her and poked her on the hand. (ECF Nos. 77 at 20, 78-1 (sealed) at 34-35, 63.) And Plaintiff testified that she believes Vargas was one of the employees who harassed and discriminated against her. (Id. (sealed) at 23.) Thus, Plaintiff has presented evidence going to the elements of her prima facie hostile environment claim.
In addition, the evidence that Defendant points to in the pertinent section of its Motion does not tell quite as clean a story as Defendant suggests it does. For example, Defendant points to Plaintiff's ‘admission' that she has ‘no evidence' connecting her mistreatment to her race or national origin. (ECF No. 69 at 23.) But in the pages of testimony preceding the ‘no evidence' statement, Plaintiff consistently testifies that she felt Vargas and Bart harassed her based on her national origin. (ECF No. 69-2 at 80-85.) Drawing all inferences in Plaintiff's favor, the best read of the ‘no evidence' testimony is that Plaintiff does not have some written documentation to support her view that Vargas and Bart were harassing her based on her national origin. And while Defendant offers several excerpts of deposition testimony to support its contention that ‘no other witnesses' offered evidence to support Plaintiff's national origin hostile work environment claim, Defendant does not discuss West's declaration the Court discussed above. Genuine disputes of material fact therefore remain, precluding summary judgment on this theory of Plaintiff's Title VII claim.
In sum, the Court denies Defendant's Motion as to Plaintiff's hostile work environment theory of her Title VII claim, but grants it as to Plaintiff's disparate treatment discrimination theory of her Title VII claim.
B. ADA Claim
The Court now turns to Defendant's Motion as to Plaintiff's ADA claim. Defendant first argues that Plaintiff's ADA claim fails to the extent it is based on a ten-pound lifting restriction imposed by her doctor for only three months because that temporary restriction does not amount to a substantial limitation under the ADA, as clarified by governing law. (ECF No. 69 at 24.) To the extent Plaintiff's ADA claim is based on restrictions on Plaintiff's ability to stand and walk, Defendant alternatively argues an ADA claim based on that theory is barred because Plaintiff failed to exhaust it and her standing and walking restrictions were both temporary and not substantially limiting. (ECF No. 69 at 24-26.) Plaintiff does not directly respond to either of these arguments, but argues she nonetheless satisfies the elements of her prima facie ADA claim because the chair that Defendant gave Plaintiff to sit in while working was not an appropriate or sufficient modification and NERC issued a finding of probable cause as to her disabilitydiscrimination claim. (ECF No. 77 at 23.) Defendant replies that the undisputed fact Defendant gave Plaintiff a chair to sit in while working after she was injured is evidence of Defendant having participated in the reasonable accommodation process required by the ADA, Plaintiff did not notify her supervisors that she was working outside restrictions imposed on her by her doctors (and when she did, Defendant promptly accommodated her), and NERC's probable-cause determination is not admissible to establish liability in this case. (ECF No. 80 at 12-14.)
Defendant has not shown it is entitled to summary judgment on its argument that Plaintiff's lifting restriction was not substantially limiting under the ADA because Shields v. Credit One Bank, N.A., 32 F.4th 1218 (9th Cir. 2022) does not support its argument. (ECF No. 69 at 24.) And Shields is the only basis that Defendant proffers for its argument. (Id.) In Shields, the Ninth Circuit held (in reversing an order granting a motion to dismiss) that a substantial inability to perform certain major life tasks for more than two months was “of sufficient duration and impact to qualify” as substantially limiting under the ADA. 32 F.4th at 1227. But Defendant attempts to use Shields to argue that a lifting restriction imposed initially for two weeks and then later for three months was not long enough in duration to qualify as substantially limiting. (ECF No. 69 at 24.) Because three months is longer than two months, and even a two month restriction could qualify as substantially limiting under Shields, Defendant's argument based on Shields is unpersuasive. And as noted, Defendant presents no other argument to support this portion of its Motion. Plaintiff's ADA claim may accordingly proceed against Defendant to the extent it is based on Defendant's alleged violation of the 10 pound lifting restrictions Plaintiff's Dr. Sobiek imposed on her-and Defendant's Motion is correspondingly denied to the same extent.
This brings the Court to Plaintiff's ADA claim to the extent it is based on restrictions on Plaintiff's ability to stand or walk following her knee injury. As an initial matter, the Court rejects Defendant's argument that this theory of Plaintiff's ADA claim is barred for failure to exhaust administrative remedies. (Id. at 24-25.) While it is true that, the “jurisdictional scope of the plaintiff's court action depends on the scope of the EEOC charge and investigation[,]” Leong, 347 F.3d at 1122, it is also true that the Court has jurisdiction over charges that are “like or reasonably related to” the allegations presented to the EEOC or its state equivalent-and indeed, the Court should consider whether they are. See id. In addition to alleging that she was not to lift more than ten pounds, Plaintiff more generally alleged to the NERC that following her injury, her care provider requested that she be placed on light duty, but Defendant did not accommodate those light duty restrictions. (ECF No. 69-25 at 3.) And both sets of restrictions stem from the same workplace knee injury that Plaintiff suffered. (ECF No. 5 at 8 (alleging that both sets of restrictions came in response to the knee injury).) Thus, the Court finds that Plaintiff's argument that Defendant violated the ADA by not allowing her to sit enough is reasonably related to the allegations in her NERC Charge. Said otherwise, this theory of this claim is not barred by the administrative exhaustion requirement.
Defendant also proffers deposition testimony of NERC investigator Richard Brown to support its argument that Plaintiff did not properly exhaust her claim to the extent premised on standing and walking restrictions, but he only testified that she did not specify any other restrictions beyond lifting more than ten pounds in her Charge. (Compare ECF No. 80 at 13 (citing ECF No. 68-11 (sealed) at 22-23) with ECF No. 68-11 at 22-23.) Brown did not offer any opinion as to whether Plaintiff's standing and walking restrictions were reasonably related to her lifting restrictions. (Id.)
In response to the rest of Defendant's arguments regarding Plaintiff's standing and walking restrictions, Plaintiff primarily counters that the chair Defendant provided her to sit in while she was working was not an appropriate or sufficient accommodation. (ECF No. 77 at 23.) On the one hand, Defendant presents Dr. Sobiek's testimony that placement of the chair was an acceptable accommodation to comply with the sedentary restrictions he imposed on her. (ECF Nos. 69 at 25 (citing the testimony), 68-9 (sealed) at 13 (testifying as such).) But on the other hand, Plaintiff testified that the chair was not an adequate accommodation. (ECF No. 68-1 (sealed) at 21-22.) Plaintiff also points in response to an observation of Plaintiff conducted by Defendant's employees noting that they did not see a chair when they went to observe her working, and they did not see her sit down or take breaks during the several hours they observed her. (ECF Nos. 77 at 23 (pointing to the observation exhibit), 78-11 (sealed) at 3 (noting they did not see a chair nor did they see Plaintiff take breaks during their observation).)
There is no dispute that Defendant gave Plaintiff a chair to use. (ECF No. 68-1 (sealed) at 8, 16; see also ECF No. 68-5 (sealed) (containing a picture of the chair).)
This conflicting evidence creates a genuine dispute of material fact precluding summary judgment as to whether the chair Defendant gave to Plaintiff to accommodate her standing and walking restrictions was a reasonable accommodation that complied with the ADA. Defendant's Motion is accordingly denied as to the sitting and walking restrictions portion of Plaintiff's ADA claim as well. In sum, Defendant's Motion is denied in its entirety as to Plaintiff's ADA claim.
C. Retaliation Claim
That brings the Court to Defendant's Motion as to Plaintiff's retaliation claim. Defendant alternatively argues this claim fails because Defendant did not engage in any activity protected under Title VII, nor can she establish a causal connection between her July 2015 complaint and her demotion nearly 18 months later, nor can she present any evidence of pretext to respond to Defendant's proffered nondiscriminatory reason for her demotion, which is that catering jobs declined following Pineda's termination, so there was only cashier work for Plaintiff to do. (ECF No. 69 at 27.) In response, Plaintiff points to either her request to accommodate her disability in 2016 or her notification to Oetjen that Vargas poked her in July 2015 as her protected activity, and while she does not really address the argument that her demotion was too far in time from the complaint she made in 2015, she does argue it is causally connected based on chronology because she was demoted after complaining to Oetjen that Vargas poked her. (ECF No. 77 at 24-26.) As to pretext, Plaintiff argues that Defendant's evidence proffered to show the legitimate, non-discriminatory reasons for her demotion is not reliable because it all post-dates Plaintiff's filing of her Charge. (Id. at 27-29.)
A prima facie case of retaliation requires a showing that: (1) the plaintiff engaged in a protected activity; (2) she suffered an adverse employment action; and (3) a causal link exists between these two events. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002). Thereafter, the burden of production shifts to the employer to present legitimate reasons for the adverse employment action. Once the employer carries this burden, the plaintiff must demonstrate a genuine issue of material fact as to whether the reason advanced by the employer was a pretext for retaliation. See Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1066 (9th Cir. 2003), as amended (Jan. 6, 2004). A plaintiff can show pretext in two ways: either “directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.” Id. at 1068 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)). A plaintiff must present “very little evidence” of pretext to survive summary judgment. Id. at 1072.
Given that Plaintiff need only present very little evidence of pretext, the Court will deny Defendant's Motion as to Plaintiff's retaliation claim. The Court begins the pertinent analysis with Plaintiff's prima facie case. To reiterate, Plaintiff points to either her report to Oetjen about Vargas poking her, or her requests to accommodate her disability, as the protected activity she engaged in. (ECF No. 77 at 24-25.) But Plaintiff cannot point to requests to accommodate her disability because she does not allege this as a basis for her retaliation claim in her Complaint. (ECF No. 5 at 11-12 (explicitly basing this claim on Title VII and describing the poking incident as the primary factual basis for it without mentioning requests to accommodate her disability at all).) See also Trishan Air, Inc. v. Fed. Ins. Co., 635 F.3d 422, 435 & n.19 (9th Cir. 2011) (finding that a claim not raised in the operative complaint, but instead for the first time in response to a motion for summary judgment “was not properly before the district court”). That said, and again drawing all inferences in Plaintiff's favor, Plaintiff's complaint to Oetjen about Vargas poking her constitutes protected activity because Plaintiff believed Vargas was discriminating against her based on her national origin (ECF No. 78-1 (sealed) at 23)-so Plaintiff's report about the poking incident was a report about harassment based on her national origin.
As to the second prong, a demotion constitutes an adverse employment action. See Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1031 (9th Cir. 2006). And there is no genuine dispute that Plaintiff was demoted. (ECF Nos. 69 at 12 (stating that Defendant “decided to eliminate the FNS Coordinator position [and] formally transferred Plaintiff to the cashier position effective January 16, 2017”), 77 at 9 (arguing she was demoted because her pay dropped when her job classification changed), 77-17 (noting Plaintiff's pay decreased when her job was changed from FNS Coordinator to FNS Services Cashier).) See also Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 847 (9th Cir. 2004) (“We have recognized that an adverse employment action exists where an employer's action negatively affects its employee's compensation.”). And again drawing all inferences in Plaintiff's favor, her demotion was causally connected to her complaint to Oetjen about Vargas' behavior because the demotion came after the complaint and Plaintiff generally received good performance reviews, even though the gap in time between the complaint and the demotion was long. (ECF Nos. 69 at 10, 12 (asserting that the complaint came before the change in job title), 77-2 (containing generally positive performance evaluations).) Viewing this evidence in the light most favorable to Plaintiff, a rational trier of fact could reasonably find a causal connection to support Plaintiff's retaliation claim.
The Court accordingly finds that Plaintiff has presented sufficient evidence to make out a prima facie case of Title VII retaliation. But Defendant also presents a legitimate, nondiscriminatory reason for her demotion, which is that the number of catering jobs declined and Plaintiff was mostly performing cashier duties anyway, so Defendant merely changed her job description to match the work she was already doing. (ECF No. 69 at 22, 27 (proffering reason).) The burden accordingly shifts back to Plaintiff to present very little evidence of pretext to survive summary judgment. See Stegall, 350 F.3d at 1068, 1072.
Plaintiff has presented the requisite very little evidence of pretext to survive summary judgment. For example, Plaintiff noted in the typewritten version of her diary that she was still being referred to as the ‘catering coordinator' and being asked to perform catering tasks in 2017 (ECF No. 69-17 at 12), or after her demotion at the end of 2016 (ECF No. 77-17 at 2 (noting a ‘date prepared' as December 29, 2016)). This is at least very little evidence that there was still catering work to be done, suggesting that Defendant's explanation for the demotion could be pretextual.
In sum, Defendant's Motion is denied as to Plaintiff's Title VII retaliation claim.
D. IIED Claim
Defendant finally argues that Plaintiff's IIED claim fails because the incidents upon which it is based do not rise to the requisite level of extreme or outrageous conduct. (ECF No. 69 at 28.) Plaintiff counters that the factual elements of her Title VII and ADA claims- plus the fact that Vargas poked her-constitute extreme or outrageous conduct making her IIED claim viable. (ECF No. 77 at 26-27.) The Court agrees with Defendant.
“The elements of a cause of action for intentional infliction of emotional distress are ‘(1) extreme and outrageous conduct with either the intention of, or reckless disregard for, causing emotional distress, (2) the plaintiff's having suffered severe or extreme emotional distress and (3) actual or proximate causation.'” Dillard Dep't Stores, Inc. v. Beckwith, 989 P.2d 882, 886 (Nev. 1999). Conduct is extreme or outrageous if it is atrocious, beyond all possible bounds of decency, and utterly intolerable. See Churchill v. Barach, 863 F.Supp. 1266, 1275 (D. Nev. 1994).
To start, Plaintiff cannot prevail on her IIED claim to the extent it is based upon the same factual contentions supporting her Title VII and ADA claims-and according to her response to the Motion, it mostly is. (ECF No. 77 at 26-27.) This is for at least two reasons. First, an IIED claim must be based on something more than, “actions [such] as hiring and firing, project assignments, promotion and demotions, performance evaluations and other similar acts[.]” Welder v. Univ. of S. Nevada, 833 F.Supp.2d 1240, 1245 (D. Nev. 2011); see also id. at 1245-46 (dismissing IIED claim because conduct upon which it was based fell under the category of normal employment relations); Robinson v. Renown Reg'l Med. Ctr., Case No. 3:16-cv-00372-MMD-WGC, 2017 WL 2945727, at *3 (D. Nev. July 10, 2017) (same). Second, and alternatively, the “Supreme Court of Nevada has held that NRS 613.330 et seq. provides ‘the exclusive remedy for tort claims premised on illegal employment practice.”' Salehian v. Nevada State Treasurer's Off., 618 F.Supp.3d 995, 1014 (D. Nev. 2022) (citations omitted) (dismissing IIED claim as well).
That leaves only the poking incident. While the poking incident may have been humiliating or distressing for Plaintiff, it is not beyond all possible bounds of decency or utterly intolerable. And “it is only when reasonable minds could differ in determining whether conduct is sufficiently extreme or outrageous that an IIED claim should survive summary judgment.” A.G. v. Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1209 (9th Cir. 2016) (citation omitted). Reasonable minds could not differ in finding that being poked on the hand while your supervisor demands some keys from you once in a 30-year (so far) tenure at an employer is not extreme or outrageous conduct. See Id. (finding under Arizona law that “touching A.G.'s legs in an effort to restrain her, escorting A.G. to the Intervention Room, attempting to seat A.G., and enlisting Officer Welsh's assistance-was not ‘so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency,'” in affirming summary judgment for certain defendants on the plaintiff's IIED claim). Plaintiff cites no caselaw to the contrary. (ECF No. 77 at 26-27.) Indeed, the only case Plaintiff cites to provide the elements of her IIED claim-not even to support her argument that the poking incident constituted outrageous conduct-actually affirmed the district court's grant of summary judgment to the defendant employer where the plaintiff alleged an IIED claim against it because his supervisor told his coworkers he was participating in an alcohol treatment program, and they jeered him about it upon his return to work, causing him to experience suicidal ideation. (Id. at 26 (citing Barmettler v. Reno Air, Inc., 956 P.2d 1382, 1386 (Nev. 1998).) See also Barmettler, 956 P.2d at 1384 (describing factual basis of the plaintiff's claims), 1386 (finding the plaintiff “has failed to establish either the first or second elements of this cause of action”). Accordingly, Defendant is entitled to summary judgment on Plaintiff's IIED claim.
IV. CONCLUSION
The Court notes that the parties made several arguments and cited to several cases not discussed above. The Court has reviewed these arguments and cases and determines that they do not warrant discussion as they do not affect the outcome of the motions before the Court.
It is therefore ordered that Defendant's motion to seal (ECF No. 67) is granted.
It is further ordered that Defendant's motion for summary judgment (ECF No. 69) is granted in part, and denied in part, as specified herein.
It is further ordered that Plaintiff's motion to seal (ECF No. 78) is granted.
It is further ordered that the Court finds it appropriate to refer this case to United States Magistrate Judge Craig S. Denney to conduct a settlement conference under LR 16-5-and the case is so referred. If the parties do not settle at the settlement conference, the Joint Pretrial Order is due within 30 days of the date the settlement conference is held.