Dustin Allen v. Mercy, Inc.

Opinion

3 DUSTIN ALLEN, 4 Plaintiff, Case No.: 2:24-cv-01193-GMN-NJK 5 vs. ORDER GRANTING MOTION FOR 6 MERCY, INC., SUMMARY JUDGMENT 7 Defendant. 8 9 Pending before the Court is the Motion for Summary Judgment, (ECF No. 44), filed by 10 Defendant Mercy, Inc. Plaintiff Dustin Allen filed a Response, (ECF No. 47), to which 11 Defendant replied, (ECF No. 48). 12 For the reasons discussed below, the Court GRANTS Defendant’s Motion for Summary 13 Judgment. 15 This action arises from Defendant terminating Plaintiff’s employment as an EMT- 16 Paramedic Operations Supervisor. (First Am. Compl. (“FAC”), ECF No. 33). Defendant 17 terminated Plaintiff after investigating Plaintiff for alleged gross negligence in the performance 18 of his job duties. (Id. ¶¶ 24, 31). But Plaintiff suspects he was terminated because he 19 confronted his supervisor, Kirk Schmitt, Defendant’s Regional Director of Southern Nevada, 20 about sexist comments he made to two of Plaintiff’s female coworkers. (Id. ¶¶ 20, 22, 24, 33). 21 It is undisputed that Defendant provides emergency medical services (“EMS”) and pre- 22 hospital care across the United States, including within Las Vegas, Nevada. Defendant has two 23 locations in Las Vegas: MedicWest and American Medical Response (“AMR”). These 24 locations provide comprehensive ambulance services including 911 emergency services. 25 1 As an Operations Manager, Plaintiff’s job duties included working with the scheduling 2 department and his team of operations supervisors to ensure that there was adequate employee 3 coverage, in part to stay compliant with Defendant’s existing services contracts. (Berg Dep. 4 61:6–13, Ex. A-6 to Mot. Summ. J., ECF No. 44-8). 5 On September 25, 2023, Plaintiff had a conversation with a female coworker, Audra, 6 who expressed to Plaintiff that she does not like Schmitt because he makes “comments that 7 [are] sexist in nature,” and feels uncomfortable around him. (Allen Dep. 37:7–14, Ex. A-4, 8 Mot. Summ. J, ECF No. 44-6). Another female coworker, Stephanie, also expressed to Audra 9 that she was uncomfortable being around Schmitt because of the sexist comments he makes. 10 (Id. 37:18–38:3). Plaintiff does not know what the sexist comments made were. (Id. 46:11–20). 11 But Plaintiff encouraged Audra to report the allegations to HR and told her to advise Stephanie 12 to do the same. (Id. 38:4–13, 44:25–45:1). Plaintiff did not report Stephanie and Audra’s 13 allegations to HR himself because he “didn’t have any of the details about the allegations,” and 14 did not probe for any details because he is not part of the HR department. (Id. 40:7–19). 15 Plaintiff confronted Schmitt about the allegations two days after his conversation with 16 Audra. (Id. 45:15–16). Plaintiff also spoke with Schmitt about the way he generally spoke to 17 people, both men and women. (Id. 47:6–9). Plaintiff details that Schmitt was rude and 18 condescending to a coworker, made another coworker cry, and raised his voice frequently. (See 19 id. 47:12–50:14). Plaintiff’s goal in speaking with Schmitt was to get him “to be a little bit

20 more mindful of the interactions he had.” (Id. 46:25–47:2). Plaintiff states that “the spirit of the 21 conversation” with Schmitt was to “fix. . . a toxic work environment. . . [and] if there was any 22 sort of inappropriate [sic] with the [sexist] comments, that was up for the corporate HR to 23 discuss and investigate.” (Id. 53:8–16). 24 Nearly a month later, there was a staffing shortage during a weekend shift that Plaintiff 25 was held responsible for based on his job duties. On October 22, 2023, for one hour, there 1 were no Advance Life Support vehicle units scheduled. (Schmitt Dep, 49:17–50:6, Ex. A-2 to 2 Mot. Summ. J., ECF No. 44-4). This is called a “critical system failure.” (Id. 51:20–52:2). 3 Plaintiff was placed on administrative leave pending an investigation into the staffing shortage 4 that led to the critical system failure and was ultimately terminated effective October 31, 2023. 5 (Cuccinello Dep. 62:20–21, Ex. A-7 to Mot. Summ. J., ECF No. 44-9). 7 The Federal Rules of Civil Procedure provide for summary adjudication when the 8 pleadings, depositions, answers to interrogatories, and admissions on file, together with the 9 affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant 10 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those that 11 may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 12 A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to 13 return a verdict for the nonmoving party. Id. “The amount of evidence necessary to raise a 14 genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties’ 15 differing versions of the truth at trial.” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 16 1983) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288–89 (1968)). 17 “Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the 18 nonmoving party, could return a verdict in the nonmoving party’s favor.” Diaz v. Eagle 19 Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008). A principal purpose of summary

20 judgment is “to isolate and dispose of factually unsupported claims or defenses.” Celotex Corp. 21 v. Catrett, 477 U.S. 317, 323–24 (1986). 22 In determining summary judgment, a court applies a burden-shifting analysis. “When 23 the party moving for summary judgment would bear the burden of proof at trial, it must come 24 forward with evidence which would entitle it to a directed verdict if the evidence went 25 uncontroverted at trial. In such a case, the moving party has the initial burden of establishing 1 the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. 2 Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (internal citation and 3 quotation marks omitted). In contrast, when the nonmoving party bears the burden of proving 4 the claim or defense, the moving party can meet its burden in two ways: (1) by presenting 5 evidence to negate an essential element of the nonmoving party’s case; or (2) by demonstrating 6 that the nonmoving party failed to make a showing sufficient to establish an element essential 7 to that party’s case on which that party will bear the burden of proof at trial. Celotex Corp., 477 8 U.S. at 323–24. If the moving party fails to meet its initial burden, summary judgment must be 9 denied, and the court need not consider the nonmoving party’s evidence. Adickes v. S.H. Kress 10 & Co., 398 U.S. 144, 158–60 (1970). 11 If the moving party satisfies its initial burden, the burden then shifts to the opposing 12 party to establish that a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. 13 Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, 14 the opposing party need not establish a material issue of fact conclusively in its favor. It is 15 sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the 16 parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors 17 Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). However, the nonmoving party “may not rely on 18 denials in the pleadings but must produce specific evidence, through affidavits or admissible 19 discovery material, to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404,

20 1409 (9th Cir. 1991), and “must do more than simply show that there is some metaphysical 21 doubt as to the material facts,” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 783 (9th Cir. 22 2002). “The mere existence of a scintilla of evidence in support of the plaintiff's position will 23 be insufficient.” Anderson, 477 U.S. at 252. In other words, the nonmoving party cannot avoid 24 summary judgment by relying solely on conclusory allegations that are unsupported by factual 25 data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go 1 beyond the assertions and allegations of the pleadings and set forth specific facts by producing 2 competent evidence that shows a genuine issue for trial. See Celotex Corp., 477 U.S. at 324. 3 At summary judgment, a court’s function is not to weigh the evidence and determine the 4 truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. 5 The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn 6 in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable or is 7 not significantly probative, summary judgment may be granted. See id. at 249–50. 9 Plaintiff brings claims for retaliation in violation of Title VII, 42 U.S.C. § 2000e, et seq. 10 and retaliation in violation of NRS 613.340. Title VII and NRS 613.340 prohibit an employer 11 from retaliating against an employee who opposes unlawful employment acts. Dawson v. Entek 12 Int’l, 630 F.3d 928, 936 (9th Cir. 2011); see NRS 613.340. To establish a prima facie case for 13 retaliation under Title VII and NRS, an employee must show (1) that he engaged in a protected 14 activity, (2) he subsequently experienced an adverse employment action, and (3) a causal link 15 exists between the two. Id. Plaintiff’s state and federal claims for retaliation are similarly 16 analyzed so the Court considers them together. See Pope v. Motel 6, 114 P.3d 277, 280 (Nev. 17 2005) (finding that in light of similarities between state and federal statutes, Nevada courts look 18 to the federal courts for guidance in discrimination cases). 19 Once a plaintiff makes out a prima facie case of retaliation, the burden shifts to the

20 defendant to articulate a legitimate, nondiscriminatory reason for its decision. Ray v. 21 Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). If the defendant does so, the plaintiff bears 22 the ultimate burden of demonstrating that the reason was merely pretext for a discriminatory 23 motive. Id. 24 25 1 Defendant argues that Plaintiff cannot establish the first element of a prima facie case of 2 retaliation and further fails to demonstrate pretext. (Mot. Summ. J. 12:17, 13:15, ECF No. 44). 3 The Court need only address Defendant’s first argument. 4 Under Title VII, an employee has engaged in a protected activity if he (1) has opposed 5 any practice made an unlawful employment practice; or (2) has made a charge, testified, 6 assisted, or participated in any manner in an investigation, proceeding, or hearing. See 42 7 U.S.C. ¶ 2000e-3(a); Sias v. City Demonstration Agency, 588 F.2d 692, 694 (9th Cir. 1978) 8 (noting that “this section contains two different clauses known, respectively, as the 9 ‘participation’ and the ‘opposition’ clause”). The Ninth Circuit, in E.E.O.C. v. Crown 10 Zellerbach Corp., held that “[t]he employee’s statement cannot be ‘opposed to an unlawful 11 employment practice’ unless it refers to some practice by the employer that is allegedly 12 unlawful.” E.E.O.C. v. Crown Zellerbach Corp., 720 F.2d 1008, 1013 (9th Cir. 1983). The 13 Ninth Circuit further determined: 14 It is not necessary, however, that the practice be demonstrably unlawful; opposition clause protection will be accorded whenever the opposition is based 15 on a “reasonable belief” that the employer has engaged in an unlawful employment practice. But a simple assertion that an employer is personally 16 bigoted, without more, is not statutorily protected opposition to an “unlawful 17 employment practice.”

18 Id. (citations omitted); see also Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Cir. 19 1978) (“When an employee reasonably believes that discrimination exists, opposition thereto is 20 opposition to an employment practice made unlawful by Title VII even if the employee turns 21 out to be mistaken as to the facts.”). There, the Ninth Circuit determined that a letter stating 22 that “racism” and “discrimination” were prevalent at the company constituted “protected 23 activity” under a Title VII claim. Id. 24 During Plaintiff’s deposition, he testified that, on September 25, 2023, he had a 25 conversation with a female coworker, Audra, who expressed to Plaintiff that she does not like 1 Schmitt because he makes “comments that [are] sexist in nature,” and feels uncomfortable 2 around him. (Allen Dep. 37:7–14, Ex. A-4, Mot. Summ. J). Plaintiff stated that another female 3 coworker, Stephanie, also expressed to Audra that she was uncomfortable being around Schmitt 4 because of the sexist comments he makes. (Id. 37:18–38:3). Plaintiff does not know what the 5 sexist comments made were. (Id. 46:11–20). But Plaintiff encouraged Audra to report the 6 allegations to HR and told her to advise Stephanie to do the same. (Id. 38:4–13, 44:25–45:1). 7 Plaintiff did not report Stephanie and Audra’s allegations to HR himself because he “didn’t 8 have any of the details about the allegations,” and did not probe for any details because he is 9 not part of the HR department. (Id. 40:7–19). 10 While Plaintiff did not report Stephanie and Audra’s allegations of sexist comments to 11 HR, he did speak with Schmitt about the allegations two days after his conversation with 12 Audra. (Id. 45:15–16). Plaintiff also spoke with Schmitt about the way he generally spoke to 13 people, both men and women. (Id. 47:6–9). Plaintiff details that Schmitt was rude and 14 condescending to a coworker, made another coworker cry, and raised his voice frequently (See 15 id. 47:12–50:14). Plaintiff’s goal in speaking with Schmitt was to get Schmitt “to be a little bit 16 more mindful of the interactions he had.” (Id. 46:25–47:2). Plaintiff states that “the spirit of the 17 conversation” with Schmitt was to “fix. . . a toxic work environment. . . [and] if there was any 18 sort of inappropriate [sic] with the [sexist] comments, that was up for the corporate HR to 19 discuss and investigate.” (Id. 53:8–16).

20 Defendant argues that the record fails to support a finding that Plaintiff participated in a 21 protected activity because Plaintiff does not know what the alleged sexist comments made by 22 Schmitt were but did not believe they rose to the level of reporting the behavior to HR himself. 23 (Mot. Summ. J. 12:25–26). Moreover, Defendant contends that there is no evidence that 24 Plaintiff made the complaint in the context of illegal discrimination under Title VII to trigger its 25 classification as a “protected activity.” (Id. 12:22–24). First, Plaintiff need not report the 1 allegations to HR to succeed on a retaliation claim. Making an informal complaint to a 2 supervisor can be considered a protected activity, if Plaintiff was acting on a reasonable belief 3 that an unlawful employment practice had occurred. Ray, 217 F.3d at 1240 n. 3 (9th Cir. 2000). 4 Here, while Plaintiff complained to his supervisor regarding the sexist comments he made, 5 Plaintiff did so to remedy a toxic work environment, not because he was acting on a reasonable 6 belief that an unlawful employment practice had occurred. (See Allen Dep. 53:8–16, Ex. A-4, 7 Mot. Summ. J). Indeed, Plaintiff did not know whether any unlawful employment practices 8 had occurred, took no position on whether he thought an unlawful act occurred, and instead 9 deferred to HR to investigate whether there was anything inappropriate about the sexist 10 comments. Thus, Defendant meets its initial burden of negating an essential element of 11 Plaintiff’s claim—the element of protected activity. 12 The burden now shifts to Plaintiff. Plaintiff argues that he reasonably believed that 13 Audra’s allegations of Schmitt making sexist comments fell under the category of unlawful 14 discriminatory acts. (Resp. 22:22–24, ECF No. 47). But Plaintiff fails to cite any part of the 15 record to support his argument. Plaintiff cannot avoid summary judgment by relying solely on 16 conclusory allegations that are unsupported by factual data. See Taylor, 880 F.2d at 1045. 17 Plaintiff therefore fails to establish a genuine dispute of material fact regarding this element 18 such that Defendant is entitled to summary judgment on Plaintiff’s retaliation claims. 19 ///

20 /// 21 /// 22 /// 23 /// 24 /// 25 /// CONCLUSION 2 IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment, (ECF 3 || No. 44), is GRANTED. 4 The Clerk of Court is kindly directed to enter judgment in favor of Defendant and close 5 || the case. 6 DATED this 27 day of March, 2026.

9 Gloria M. 1a) arro, District Judge United States District Court 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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