United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.
before the Court is a Motion for Summary Judgment on Counts
7-11 of Plaintiff's First Amended Complaint, (Doc. 83),
filed by Defendants Mohave County, Steve Latoski, Ramon
Osuna, Kevin Stockbridge, and Warren Twitchel
("Defendants") on January 25, 2016. On February 29,
2016, Plaintiff filed a letter addressed to the Court,
ostensibly in response to Defendants' motion. (Doc. 88).
On March 11, 2016, Defendants filed a reply brief. (Doc. 89).
Two months later, Plaintiff filed a second letter, this time
requesting additional time to file another response to
Defendants' motion for summary judgment. (Doc. 91). On
May 17, 2016, the Court deemed Plaintiff's second letter
a request for extension of time and permitted Plaintiff to
file another response by June 6, 2016. (Doc. 92). On June 8,
2016, Plaintiff filed a third letter, apparently in response
to Defendants' motion for summary judgment. (Doc.
Defendants filed a second reply brief on June 23, 2016. (Doc.
96). The Court now rules on Defendants' motion.
a forty-nine year old Native American woman, was employed by
Defendant Mohave County's Public Works Department
("PWD") for over seventeen years. (Doc. 84 at 1).
As a term of her employment, Plaintiff was required to
maintain a Commercial Driver's License ("CDL").
(Id. at 2). Plaintiff began her tenure at PWD in
1995 as a Road Maintenance Worker. (Id. at 1).
Plaintiff applied for and was promoted to Senior Road
Maintenance Worker in 2001 and to Road Maintenance Worker
Specialist in 2002. (Id.) The only promotion Plaintiff
applied for but did not receive was for a
"superintendent" position. (Id. at 8).
Plaintiff earned an increase in salary for each promotion and
was awarded multiple bonuses throughout her career.
(Id. at 2). Plaintiff generally received
satisfactory supervisor feedback on her annual reviews.
Mohave County Merit Rules ("Merit Rules") govern
discipline of PWD employees who test positive for drugs or
alcohol while on duty. (Id.) Merit Rule 507 begins
by warning employees that "violations of this Rule may
result in discipline for existing employees, up to and
including dismissal." (Doc. 84-1 at 11). Merit Rule
507(C)(5)(b)(ii) then expressly provides that if a PWD
employee who occupies a safety sensitive position tests
positive for drugs while on duty, "such employee may be
immediately dismissed." (Doc. 84 at 3). Merit Rule
701(A)(4)(g) also explicitly prohibits employees from being
under the influence of marijuana while on duty or on county
property. (Id.) PWD employees who carry CDLs and
operate commercial vehicles, such as Plaintiff, are
considered to be in safety sensitive positions and are
subject to random drug testing. (Id. at 3-4).
Employees subject to drug testing are randomly selected by
and tested at the Kingman Regional Medical Center.
(Id. at 4).
knew that the Merit Rules prohibited the consumption of
marijuana, signed acknowledgements that she received Mohave
County's policies, and attended training sessions
specifically addressing the prohibited consumption of illegal
drugs, e.g., marijuana. (Id. at 12). Moreover,
Plaintiff understood that employees were subject to
termination pursuant to PWD's standards for testing
positive for drugs or alcohol while on duty. (Id. at
Director of PWD since 2009, Defendant Latoski is solely in
charge of disciplining employees pursuant to the Merit Rules.
(Id. at 4; Doc. 84-1 at 2). According to Defendant
Latoski, strict enforcement of the Merit Rules is necessary
because "the use of tools and/or operation of equipment
that if not operated in an alert manner and properly could
harm both the operator and/or the public." (Doc. 84 at
3). During Defendant Latoski's tenure, if a PWD employee
in a safety sensitive position tested positive for alcohol or
drugs while on duty, the result was "uniform . . .
dismissal." (Id. at 4). Since January 2010, all
ten PWD employees in safety sensitive positions who tested
positive for alcohol or drugs while on duty were not offered
substance abuse counseling but were terminated or resigned in
lieu of termination. (Id. at 5). Of those ten
employees, eight were Caucasian, one was Hispanic, and one
was Native American (Plaintiff). (Id. at 5, 8).
15, 2013, Plaintiff attended a drug and alcohol training
session conducted by Defendant Twitchel. (Id. at 5).
During the session, Defendant Twitchel discussed a draft
"Zero Tolerance Policy" for drug use that had yet
to be approved by the County Board of Supervisors.
(Id.) Defendant Twitchel encouraged the
employees in attendance to ask questions in order to fully
understand the county's policies. (Id. at 6). At
the session, Plaintiff was reminded that discipline for a
failed drug test would be carried out pursuant to the Merit
the July 15, 2013 meeting, Plaintiff was randomly selected
for a drug screening and was tested at Kingman Regional
Medical Center. (Id.) Plaintiff was not selected for
every random drug screen. (Id. at 8). On July 24,
2013, Plaintiff was notified that she had tested positive for
marijuana. (Id. at 6). Because she had recently
consumed marijuana illegally, Plaintiff was "not
surprised" at the result. (Id. at 7; Doc. 84-1
25, 2013, Plaintiff attended a meeting with Defendants
Stockbridge, Twitchel, and Latoski to discuss her test
results. (Doc. 84 at 6). Instead of admitting that the
positive test was accurate because of her recent marijuana
consumption, Plaintiff asserted that the result was a false
positive due to Marinol, a prescription that she was
purportedly taking. (Id. at 7; Doc. 84-3 at 79).
Plaintiff admitted, however, that she never actually consumed
Marinol prior to the drug test and knew that the positive
result was due to her recent marijuana use. (Doc. 84 at 6).
During the meeting, Plaintiff was "afraid" and lied
about her test result because she knew that employees were
being terminated for testing positive for drugs or alcohol.
(Id.; Doc. 84-1 at 112-13). Defendant Latoski
advised Plaintiff that she was being placed on administrative
leave and could re-test the sample pursuant to the Merit
Rules. (Doc. 84 at 6).
30, 2013, Defendant Latoski sent Plaintiff a letter notifying
her of his intent to dismiss her from employment. (Doc. 84-1
at 78). On August 6, 2013, Defendant Latoski, as sole
decision maker for Defendant Mohave County, informed
Plaintiff that she was being terminated pursuant to the Merit
Rules and advised her of her right to appeal. (Doc. 84 at 7).
Defendant Latoski testified that the only reason he
terminated Plaintiff was because she tested positive for
marijuana in violation of the Merit Rules. (Id. at
8). Plaintiff filed for a hearing regarding her termination,
and after a Merit Commission Appeal Hearing on December 20,
2013, her termination was upheld. (Id.) Plaintiff
subsequently filed this lawsuit on August 20, 2014. (Doc. 1).
Legal Standard for Summary Judgment
judgment is appropriate when "the movant shows that
there is no genuine issue as to any material fact and that
the moving party is entitled to summary judgment as a matter
of law." Fed.R.Civ.P. 56(a). A party asserting that a
fact cannot be or is genuinely disputed must support that
assertion by "citing to particular parts of materials in
the record, " including depositions, affidavits,
interrogatory answers or other materials, or by "showing
that materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact." Id.
at 56(c)(1). Thus, summary judgment is mandated "against
a party who fails to make a showing sufficient to establish
the existence of an element essential to that party's
case, and on which that party will bear the burden of proof
at trial." Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
the movant bears the burden of pointing out to the Court the
basis for the motion and the elements of the causes of action
upon which the non-movant will be unable to establish a
genuine issue of material fact. Id. at 323. The
burden then shifts to the non-movant to establish the
existence of material fact. Id. The non-movant
"must do more than simply show that there is some
metaphysical doubt as to the material facts" by
"com[ing] forward with ‘specific facts showing
that there is a genuine issue for trial.'"
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e)
(1963) (amended 2010)). A dispute about a fact is
"genuine" if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The non-movant's bare assertions, standing alone,
are insufficient to create a material issue of fact and
defeat a motion for summary judgment. Id. at 247-48.
Further, because "[c]redibility determinations, the
weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge, . . . [t]he evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in
his favor" at the summary judgment stage. Id.
at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S.
144, 158-59 (1970)); Harris v. Itzhaki, 183 F.3d
1043, 1051 (9th Cir. 1999) ("Issues of credibility,
including questions of intent, should be left to the
jury." (citations omitted)).
summary judgment stage, the trial judge's function is to
determine whether there is a genuine issue for trial. There
is no issue for trial unless there is sufficient evidence
favoring the non-moving party for a jury to return a verdict
for that party. Liberty Lobby, 477 U.S. at 249-50.
If the evidence is merely colorable or is not significantly
probative, the judge may grant summary judgment. Id.
Notably, "[i]t is well settled that only admissible
evidence may be considered by the trial court in ruling on a
motion for summary judgment." Beyene v. Coleman Sec.
Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988).
claims remain from Plaintiff's FAC. Count 7 alleges
that Defendant Mohave County violated Title VII of the Civil
Rights Act of 1964 by discriminating against Plaintiff based
on her race and/or ancestry. (Doc. 4 at 16-17). Counts 8 and
9 allege that Defendant Mohave County violated
Plaintiff's rights under the Family Medical Leave Act
("FMLA"). (Id. at 17-19). Count 10 alleges
that the individual Defendants discriminated against
Plaintiff based on her race and/or ancestry in violation of
42 U.S.C. § 1981. (Id. at 19-21). Finally,
Count 11 alleges that the individual Defendants violated
Plaintiff's civil rights under 42 U.S.C. § 1983.
(Id. at 21-22). The Court will address each Count in
Counts 7 and 10: Violations of Title VII and §
seventh and tenth Counts allege that Defendants violated
Title VII and § 1981 by discriminating against Plaintiff
based on her race and/or ancestry. (Id. at 16- 17,
19-21). Specifically, Plaintiff claims that "other
non-Native American employees hired by the Road Maintenance
Department after her hire date received more frequent
promotions and pay raises." (Id. at 17, 20).
Plaintiff also asserts that "the County did not
terminate other similarly situated non-Native American
employees who violated the County's Drug and Alcohol
Legal Standard for Discrimination under Title ...