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Yazzie v. County of Mohave

United States District Court, D. Arizona

July 19, 2016

Vina Yazzie, Plaintiff,
v.
County of Mohave, et al., Defendants.

          ORDER

          JAMES A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.

         Pending 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[1] ("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. 93).[2] Defendants filed a second reply brief on June 23, 2016. (Doc. 96). The Court now rules on Defendants' motion.

         I. Background[3]

         Plaintiff, 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.)[4] 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. (Id.)

         The 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).

         Plaintiff 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 6).

         As 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).[5] Of those ten employees, eight were Caucasian, one was Hispanic, and one was Native American (Plaintiff). (Id. at 5, 8).

         On July 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.)[6] 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 Rules. (Id.)

         After 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 at 108).

         On July 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).[7]

         On July 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).

         II. Legal Standard for Summary Judgment

         Summary 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).

         Initially, 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)).

         At the 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).

         III. Analysis

         Five claims remain from Plaintiff's FAC.[8] 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 turn.

         A. Counts 7 and 10: Violations of Title VII and § 1981[9]

         Plaintiff's 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 Policies." (Id.)

         1. Legal Standard for Discrimination under Title ...


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