Collins v. AutoZone, Inc.

Opinion

1 2 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 3 4 Eric Collins, Case No. 2:22-cv-00316-CDS-BNW

5 Plaintiff Order Granting Defendants’ Motion for Summary Judgment and Closing Case 6 v.

7 AutoZoners, LLC, et al., [ECF No. 42] 8 Defendants

9 10 This is an employment action brought by plaintiff Eric Collins against defendants 11 AutoZoners LLC and Jimmy James.1 Collins brings four claims: (1) sex discrimination under 12 Title VII of the Civil Rights Act of 1964 (Title VII) and Nevada Revised Statutes (NRS) Section 13 613.330; (2) retaliation in violation of Title VII and NRS Section 613.340; (3) intentional 14 infliction of emotional distress (IIED); and (4) negligent hiring, supervision, retention and/or 15 training. ECF No. 29. Defendants move for summary judgment on all four counts. ECF No. 42. 16 The motion is fully briefed. For the following reasons, I grant summary judgment and kindly 17 direct the Clerk of Court to close this case. 18 I. Background 19 A. Collins’ employment with AutoZone 20 On or about May 24, 2020, AutoZoners hired Collins as a part-time sales associate at 21 AutoZone, Inc. ECF No. 29 at 3. Collins worked at AutoZone, Inc.’s store #5743 located at 3007 22 N. Rainbow Blvd in Las Vegas, Nevada. Id. James was a manager at the #5743 store and worked 23 with Collins. Id. Collins alleges that James had been treated for mental health issues, specifically, 24 schizophrenia, and that he carried a gun to work. Id. at 2–3; Reyes Dep., Pl.’s Ex. 1-A, ECF No. 25 48-1 at 13, 31:11–24. 26 1 Defendant AutoZone, Inc. was terminated on July 21, 2022. 1 B. The incident 2 On February 21, 2021, Collins was working a 5pm to 9pm shift with James. ECF No. 29 3 at 4. Collins alleges that during the shift, James began asking Collins questions of a sexual 4 nature, such as, “Have you ever put anything in your asshole?” “How big is your penis?” and 5 “Have you done anything sexual?” Id. Collins alleges that he told James repeatedly to stop. Id. 6 Collins then alleges that, a few hours into the shift, James told another manager he could go 7 home early so that James would be alone in the store with Collins and then closed the store early 8 and locked the doors, trapping Collins in the store with him. Id. James then allegedly proceeded 9 to ask Collins if he wanted a blow job, which Collins refused, and then pulled out a dildo and 10 told Collins he could use the dildo on him. Id. at 5. This was allegedly followed by numerous 11 other advances, which Collins refused while James followed Collins around the store. Id. The 12 harassment culminated in James allegedly masturbating with the dildo, out of sight of both 13 Collins and the security cameras. Id. Collins then contacted his family and arranged to be picked 14 up from his shift early. Id. 15 C. The aftermath 16 Following this incident, Collins attempted to contact Store Manager Paul Escareno to 17 inform him of the harassment but received no response that night. Id. The next day, on February 18 22, Collins filed a report with the Las Vegas Metro Police Department detailing the harassment. 19 Id. On February 23, 2021, Collins called Human Resources and filed an internal report with 20 Manager Lori Casson. Id. Casson held an interview with Collins that same day at the Regional 21 office. Initial Interview Statement, Defs.’ Ex. 21, ECF No. 42-22. During the interview, Casson 22 asked Collins whether he was willing to return to work, and Collins responded that he was 23 upset and needed time off. Collins Dep., Defs.’ Ex. 1, ECF No. 42-2 at 140:24–142:12. AutoZone 24 permitted Collins to take time off. Id. at 144; 3/25/21 Letter from Lori Casson to Eric Collins, 25 Defs.’ Ex. 28, ECF No. 42-29. Collins also told Casson that, if he were to return, it would need to 26 be a different store location as James lived close to the #5743 store, so Casson identified two 1 other stores at which he could work. Collins Dep., Defs.’ Ex. 1, ECF No. 42-2 at 141:9–42:15; 2 4/1/21 Letter from M. Wood to Collins’ counsel, Defs.’ Ex. 30, ECF No. 42-31. The next day, on 3 February 24, 2021, Casson called Collins and told him that she was checking in on him and also 4 seeing whether he wanted to be put on the schedule at another AutoZone store. Collins Dep., 5 Defs.’ Ex. 1, ECF No. 42-2 at 143–44; Redacted cellphone records of Casson from 2/22/21–3/21/21, 6 Defs.’ Ex. 26, ECF No. 42-27. Collins told Casson that he was not ready to return to work. 7 Collins Dep., Defs.’ Ex. 1, ECF No. 42-2 at 143–44, 158. James was not allowed to work during 8 the pendency of the investigation. See James Timecards from 1/3/21–3/9/21, Defs.’ Ex. 18, ECF No. 9 42-19. 10 Meanwhile, Casson continued her investigation by reviewing the store video footage; the 11 timecards for the night shift; the store alarm open and close report; and the daily sales, cash 12 count, and register sweeps. HR Investigation Form: IV-5743-HR-2001- 0001, Defs.’ Ex. 25, ECF 13 No. 42-26. Casson interviewed two other employees—Kevontae Morris and Justin Reyes—as 14 part of her investigation. Morris Initial Interview Statement, Defs.’ Ex. 22, ECF No. 42-23; Reyes 15 Initial Interview Statement, Defs.’ Ex. 23, ECF No. 42-24. Casson also interviewed James, where 16 he denied engaging in any sexual harassment, but did, however, admit that he violated other 17 store policies during the shift, such as closing the store early without permission and staying at 18 the store beyond the end of his shift. James Initial Interview Statement, Defs.’ Ex. 24, ECF No. 19 42-25. 20 Though Casson could not substantiate the sexual harassment allegations, she 21 recommended that James’s employment be terminated. Defs.’ Ex. 2 at 33:21-34:7, 47:24–48:10; 22 Defs.’ Ex. 3 at 168:11–16. On or around March 3, 2021, James’s employment was terminated. James 23 Corrective Action Review for Termination, Defs.’ Ex. 31, ECF No. 42-32. On March 10, 2021, 24 Casson called Collins to discuss the outcome of the investigation and to see whether Collins was 25 ready to return to work. Casson left a message for him to call her back after Collins did not 26 answer or return her call. Redacted cellphone records of Casson from 2/22/21–3/21/21, Defs.’ Ex. 1 26, ECF No. 42-27; 3/25/21 Letter from Lori Casson to Eric Collins, Defs.’ Ex. 28, ECF No. 42-29; 2 Collins Dep., Defs.’ Ex. 1, ECF No. 42-2 at 144–146:19. On March 19, 2021, Casson called Collins 3 again and left another message that was unreturned. Redacted cellphone records of Casson from 4 2/22/21–3/21/21, Defs’ Ex. 26, ECF No. 42-27; 3/25/21 Letter from Lori Casson to Eric Collins, 5 Defs.’ Ex. 28, ECF No. 42-29; Exhibit 1 at 146:21-148:9; Collins Dep., Defs.’ Ex. 1, ECF No. 42-2 at 6 146:21–148:9. On March 23, 2021, Casson tried again. Collins did not answer or return her call. 7 Redacted cellphone records of Casson from 2/22/21–3/21/21, Defs.’ Ex. 26, ECF No. 42-27; Collins 8 Dep., Defs.’ Ex. 1, ECF No. 42-2 at 148:10–149:19. 9 On March 25, 2021, Casson sent Collins a letter stating that she had been trying to reach 10 him multiple times post-investigation about returning to work at a different store location and 11 that Collins had failed to respond or return to work as of February 22. 3/25/21 Letter from Lori 12 Casson to Eric Collins, Defs.’ Ex. 28, ECF No. 42-29. The letter explained that AutoZone had 13 honored his request to take time off during the investigation, but that additional leave would 14 require a Leave of Absence request and provided the company’s Benefit’s department contact 15 number should he wish to go that route. Id. The letter further stated that Collins must either 16 submit the necessary paperwork or contact Casson or District Manager Stephen Pizzuto no 17 later than March 31 or AutoZone would assume he wishes to resign his employment. Id. Collins 18 did not fill out a Leave of Absence or contact Casson or Pizzuto by March 31 and his 19 employment with AutoZone ended. ECF No. 29 at 6. 20 II. Legal standard 21 Rule 56(c) provides that summary judgment must be granted when there exists no 22 genuine issue as to any material fact and the moving party is entitled to judgment as a matter of 23 law. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Material facts are those which may affect the 24 outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining 25 whether a genuine issue of material fact exists, the court must not make credibility 26 determinations or weigh conflicting evidence. Id. at 255. Rather, the court must view the 1 evidence in the light most favorable to the non-moving party, drawing all “justifiable inferences” 2 in its favor. Id. (internal citation omitted). The movant bears the initial burden of identifying 3 those portions of the pleadings, discovery, and affidavits which demonstrate the absence of a 4 genuine issue of material fact. Celotex Corp., 477 U.S. at 323. Once the moving party has met its 5 burden of production, the nonmoving party must go beyond the pleadings and, by its own 6 affidavits or discovery, set forth specific facts showing that there is a genuine issue for trial. Id. If 7 the nonmoving party fails to produce enough evidence to show a genuine issue of material fact, 8 then the moving party wins. Id. Conclusory, speculative testimony in affidavits and moving 9 papers is insufficient to raise genuine issues of fact and defeat summary judgment. Thornhill Pub. 10 Co. v. General Tel. & Elecs. Corp., 594 F.2d 730, 738 (9th Cir. 1979). 11 III. Analysis 12 A. Summary judgment on Collins’ harassment claims is granted as a matter of 13 law.2 14 Defendants argue that Collins’ hostile work environment harassment claims fail for two 15 reasons: “(1) Mr. Collins cannot establish a prima facie case, and (2) AutoZone took immediate 16 remedial efforts to address Mr. Collins’s complaint.” ECF No. 42 at 13. I agree with the second 17 argument. Because I find that the claims fail either way because AutoZone took sufficient 18 remedial measures, I make no ruling on whether the harassment alleged in this case was severe 19 or pervasive enough to constitute a hostile work environment. 20 21 22

23 2 Nevada’s law concerning discrimination and hostile work environment follows the federal standards and thus I consider both claims together. See Doe v. Wynn Resorts, Ltd., 2023 U.S. Dist. LEXIS 19257, at *15 24 n.13 (D. Nev. Feb. 3, 2023) (“Because the employment discrimination standards in § 1983 and NRS § 613.330 are coextensive with those under Title VII, the Court treats these claims together under Title 25 VII.”) (citing Crawford v. Nev. DOT, 2019 U.S. Dist. LEXIS 54962, at *4 n.2 (D. Nev. Mar. 31, 2019)); Pope v. Motel 6, 114 P.3d 277, 280 (Nev. 2005) (“In light of the similarity between Title VII of the 1964 Civil Rights 26 Act and Nevada’s anti-discrimination statutes, we have previously looked to the federal courts for guidance in discrimination cases.”). 1 Where the alleged misconduct was by a fellow employee,3 an employer is only liable for a 2 hostile work environment if “it failed to reasonably respond to the conduct or to the extent that 3 it ratified or acquiesced in it.” Ryan v. Barrick Goldstrike Mines Inc., 2021 U.S. Dist. LEXIS 95693, *15 4 (D. Nev. 2021) (citing Campbell v. Hawaii Dep’t of Educ., 892 F.3d 1005, 1017 (9th Cir. 2018), Freitag v. 5 Ayers, 468 F.3d 528, 539 (9th Cir. 2006)). Reasonableness is evaluated “only from the perspective 6 of what the employer knew or should have known at the time it acted ... [and] as an initial 7 matter, the employer must learn what actually happened.” Id. (quoting Campbell, 892 F.3d at 8 1017). Remedial action must include some form of disciplinary measures, Yamaguchi v. U.S. Dep’t of 9 the Air Force, 109 F.3d 1475, 1482 (9th Cir. 1997), which must be “proportionate[ ] to the 10 seriousness of the offense.” Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991) (citation omitted) 11 (“Title VII requires more than a mere request to refrain from discriminatory conduct.”). Further, 12 prompt action alone is not enough, but “remedial measures must also be effective.” Reynaga v. 13 Roseburg Forest Prods., 847 F.3d 678, 688 (9th Cir. 2017) (citing Nichols v. Azteca Rest. Enters., Inc., 256 14 F.3d 864, 872 (9th Cir. 2001) (“When the employer undertakes no remedy, or where the remedy 15 does not end the current harassment and deter future harassment, liability attaches for both the 16 past harassment and any future harassment.”)). 17 Here, AutoZone interviewed Collins promptly regarding his complaint and initiated an 18 investigation during which time it did not allow James to work. Casson Dep., Defs.’ Ex. 2, ECF 19 No. 42-3 at 47:24–48:10; James Timecards from 1/3/21–3/9/21, Defs.’ Ex. 18, ECF No. 42-19. 20 3 Collins argues that James is a manager, not an employee, and thus a different standard of liability 21 applies to AutoZone here. ECF No. 47 at 21–22. The Supreme Court has held that, for purposes of Title VII, a “supervisor” is an individual “the employer has empowered that employee to take tangible 22 employment actions against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision 23 causing a significant change in benefits.’” Vance v. Ball State Univ., 133 S. Ct. 2434, 2443 (2013). Collins was not a supervisor because he was unable to hire, fire, promote, demote, issue a corrective action, or set 24 compensation for another employee. Casson Dep., Defs.’ Ex. 2, ECF No. 42-3 at 54; Escareno Dep., Defs.’ Ex. 4, ECF No. 42-5 at 125:3–22. 25

26 1 AutoZone made accommodations for Collins in the meantime, granting his request for time off 2 while offering him employment at different store locations should he choose to return to work. 3 Following the investigation, AutoZone took disciplinary measures sufficient to ensure the 4 harassment did not continue—terminating James’s employment less than a week later. James 5 Corrective Action Review for Termination, Defs.’ Ex. 31, ECF No. 42-32; Casson Dep., Defs.’ Ex. 6 2, ECF No. 42-3 at 331:21-34:7. AutoZone then tried repeatedly to contact Collins about the 7 results of the investigation and to arrange his return to work. Collins Dep., Defs.’ Ex. 1, ECF No. 8 42-2 at 144–152:8; Redacted cellphone records of Casson from 2/22/21–3/21/21, Defs.’ Ex. 26, ECF 9 No. 42-27. This constitutes prompt, effective remedial action sufficient to vitiate AutoZone’s 10 liability for a hostile work environment claim. See Ryan, 2021 U.S. Dist. LEXIS 95693, at *16–17. 11 Collins argues that AutoZone’s response to his complaint was insufficient because it 12 should have (1) been aware that, with his mental health issues and gun, James was a “ticking 13 timebomb” and a danger to Collins as he allegedly had been sexually harassing Collins prior to 14 February 21, and (2) given assurances of Collins’ safety regarding James prior to his return to 15 work. ECF No. 47 at 3, 21–22. For the following reasons, both arguments are unavailing. 16 The first argument fails because, as Collins admits, he did not complain about James 17 prior to February 21 or otherwise put AutoZone on notice. Collins Dep., Defs.’ Ex. 1, ECF No. 42- 18 2 at 182:14–183:13. Simply, AutoZone cannot act on what it does not know. Collins contends that 19 Escareno, as a supervisor, “knew about Mr. James’ ongoing sexual harassment, unresolved 20 schizophrenia, and that he carried a gun at work prior to the events of February 21, 2021”, and 21 thus AutoZone should have known that James was a “ticking timebomb” toward Collins. 22 However, Collins explicitly testified that James had never directed any sexual harassment or 23 jokes at him prior to February 21. Collins Dep., Defs.’ Ex. 1, ECF No. 42-2 at 98:1–3. In fact, he 24 even testified that he was surpriseds James’s advances on February 21 were “towards [him].” Id. 25 at 98:4–8. In other words, there was nothing of particular note or concern for Escareno to have 26 escalated or acted upon prior to February 21 regarding James’s treatment of Collins. While 1 James’s alleged schizophrenia and gun may be fodder for a negligent hiring, supervision, 2 retention and/or training claim, it is unreasonable to argue that AutoZone did not properly take 3 corrective action for a sexual harassment hostile work environment claim prior to February 21. 4 The problem with Collins’ second argument is that, even to the extent AutoZone was 5 required to give these safety assurances, Collins obstructed AutoZone’s ability to discuss any 6 such measures as he chose to ignore Casson’s calls following James’s termination. Collins Dep., 7 Defs.’ Ex. 1, ECF No. 42-2 at 144–152:8. Collins cannot stifle his employer’s ability to 8 communicate with him and then complain that his employer failed to communicate something 9 to him. In fact, because he failed to pick up the phone or call Casson back, he was unaware at 10 the time that James had been terminated, and in response to what he would have considered 11 “sufficient” to feel safe returning to the workplace, Collins testified: “I don’t know. Maybe 12 putting [James] on leave.” Id. at 193:18–194:2, 193:2–12. For those reasons, I find that, given the 13 circumstances, AutoZone responded reasonably to Collins’ complaint and thus I grant summary 14 judgment in its favor on the hostile work environment claims. 15 B. Summary judgment on Collins’ retaliation claims is granted as a matter of law. 16 To state a prima facie case of retaliation under Title VII, a plaintiff must demonstrate 17 that (1) he engaged in a protected activity; (2) he suffered an adverse employment action; and (3) 18 there was a causal connection between the two. Westendorf v. W. Coast Contrs. of Nev., Inc., 712 F.3d 19 417, 422 (9th Cir. 2013); Porter v. California Dep’t. of Corr., 419 F.3d 885, 894 (9th Cir. 2005).4 20 There is no dispute that Collins engaged in a protected activity by complaining to HR 21 about the alleged sexual harassment. See Westendorf, 712 F.3d at 422 (stating that an employee 22 engages in protected activity when she opposes an employment practice that either violates 23 Title VII or that the employee reasonably believes violates that law). However, Collins 24 4 Nevada’s law concerning retaliation follows the federal standards and thus I consider both claims 25 together. See Doe, 2023 U.S. Dist. LEXIS 19257, at *37 n.21 (“Nevada law looks to federal discrimination and retaliation cases for guidance in applying state law,” and [b]ecause discrimination and retaliation 26 claims under Nevada law are substantially similar to claims under Title VII, the Court’s discussion will focus on Title VII.”). 1 retaliation claims fail because he fails to establish that he was subjected to an adverse 2 employment action. 3 Collins argues that he experienced two material adverse employment actions following 4 his sexual harassment complaint against James: “(1) AutoZone removed Mr. Collins from the 5 workplace instead of Mr. James; and (2) Mr. Collins was constructively discharged.” ECF No. 47 6 at 24. The evidence clearly demonstrates, however, that it was Collins, not AutoZone, who 7 facilitated his “removal” from the workplace. Collins repeatedly testified that he needed time off 8 from work while AutoZone repeatedly provided him opportunities to come back, including at 9 different store locations. Moreover, AutoZone’s request for Collins to return to the workplace 10 following the conclusion of the investigation, or to resign, was not unreasonable or an adverse 11 employment action. See McKissick v. City of Reno, 2019 U.S Dist. LEXIS 119567, at *35 (D. Nev. Jul. 12 18, 2019) (“Because the evidence supports that Plaintiffs willingly took paid administrative leave 13 and that Plaintiffs were not directed to return to work until a date after the Wall Report was 14 concluded, Plaintiffs’ allegation of material adverse action is unsupported.”) 15 Nor has Collins established constructive discharge. To establish a constructive discharge 16 in the context of a hostile work environment claim, Collins must show that the “working 17 conditions [were] so intolerable that a reasonable person would have felt compelled to resign.” 18 McKissick, 2019 U.S Dist. LEXIS 119567, at *35 (quoting Pennsylvania State Police v. Suders, 542 U.S. 19 129, 147 (2004)). A reasonable person in Collins’ shoes would not have been compelled to resign 20 because James was the root of the issue, and he was not facing the prospect of working with 21 James again. Id. at *36 (“A reasonable person in [plaintiff’s] position would not have been 22 compelled to resign in Clinger’s absence because her claims of severe and pervasive harassment 23 are largely concerning Clinger and his conduct.”). Collins was aware that AutoZone was willing 24 to assign him to a different store and if he had not ignored Casson’s attempts to call, he would 25 have also been aware that James had been terminated and was no longer in the system at all. For 26 those reasons, I find that Collins did not suffer an adverse employment action and thus I grant defendants summary judgment on his retaliation claims. 3 C. The court declines to exercise supplemental jurisdiction on the remaining state 4 law claims. 5 Remaining are Collins’ claims for ITED and negligent hiring, supervision, retention and/or training. Federal courts are courts of limited jurisdiction, and they may exercise supplemental 7|| jurisdiction over state-law claims that “are so related to claims in the action” that they form the 8]] same case or controversy with the claims over which the court has jurisdiction. 28 U.S.C. § 1367(a). Once a plaintiff's federal claims are gone, the court may decline to exercise supplemental jurisdiction over remaining state-law claims. Id. at § 1367(c)(3); Harrell v. 20th Century Ins. Co., 934 F.2d 203, 205 (9th Cir. 1991) (“[I]t is generally preferable for a district court to remand remaining pendent claims to state court.”). Because I have granted summary judgment on Collins’ Title VII claims on which federal jurisdiction is based here, I decline to continue to 14] exercise supplemental jurisdiction over their remaining state-law claims and dismiss them without prejudice to Collins’ ability to refile them in state court. See Branch-Noto v. Sisolak, 576 F. Supp. 3d 790, 806 (D. Nev. Dec. 22, 2021). Conclusion 18 IT IS THEREFORE ORDERED that defendants’ motion for summary judgment [ECF No. 42] is GRANTED. Summary judgment is granted on Counts I and Il and Counts II and VI are dismissed without prejudice. 21 The Clerk of Court is kindly directed to enter judgment accordingly and to close this case. / ) 23 Dated: March 19, 2024 LZ 24 —_ 35 Unite tates District Judge 26