Sandhu v. Enterprise Holdings, Inc.

• Court: District Court, D. Nevada
• Decided: January 6, 2023
• Docket: 3:20-cv-00685
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 JAGROOP SANDHU, Case No. 3:20-cv-00685-ART-CLB

6 Plaintiff, ORDER v. 7 ENTERPRISE HOLDINGS, INC., et al., 8 Defendants. 9 10 Plaintiff Jagroop Sandhu, proceeding pro se, brings this action for race and 11 national origin discrimination in violation of Title VII of the Civil Rights Act, 42 12 U.S.C. § 2000e-2(a), and NRS 613.330(1). Plaintiff, who is Sikh Indian-American, 13 alleges that during his employment with Defendants, the business entities doing 14 business as Enterprise Rent-A-Car, he received a lower rate of pay than other 15 similarly situated employees which he was not able to negotiate and that he was 16 passed up for a promotion which was awarded to a less-qualified Caucasian 17 woman. Before the Court are: (1) Defendants’ Motion for Summary Judgment 18 (ECF No. 34); and (2) Defendants’ Motion to Dismiss Based on Plaintiff’s Untrue 19 In Forma Pauperis Application (ECF No. 35). Because Plaintiff has not proffered 20 sufficient evidence of discriminatory intent to create a genuine issue of material 21 fact for trial, the Court grants Defendants’ Motion for Summary Judgment and 22 denies Defendants’ Motion to Dismiss as moot. 23 I. COMPLAINT 24 Plaintiff filed his Complaint (ECF No. 6 (“Complaint”)) on December 9, 2020, 25 with an Application to Proceed In Forma Pauperis (ECF No. 1), and the Court 26 screened Plaintiff’s Complaint on January 26, 2021 (ECF No. 5). According to his 27 Complaint, Plaintiff began his employment with Defendants on May 19, 2014, 28 first as an Intern, then as a Management Trainee, and then was promoted to 1 Assistant Manager in May of 2016. (Id. at ¶¶ 14-20.) Plaintiff alleges that in 2 September of 2016, several months after his promotion, his Area Manager Joseph 3 Brandhagen “told Plaintiff that he was being paid too much and that his 4 commission would be reduced from 4.5% to 4%.” (Id. at ¶ 21.) When Plaintiff 5 complained about the reduced commission, Mr. Brandhagen told Plaintiff that a 6 promotion would become available in a month, and in October of 2016 Plaintiff 7 was promoted to Assistant Manager of the Mill Street Enterprise Rent-A-Car 8 location, the largest in the area. (Id. at ¶¶ 22-23.) A month later, Mr. Brandhagen 9 informed Plaintiff of a new compensation plan which allegedly resulted in a 10 reduction in Plaintiff’s compensation, and when Plaintiff complained to Group 11 Rental Manager Shane Jarrell, Mr. Jarrell refused to adjust Plaintiff’s 12 compensation plan. (Id. at ¶¶ 24-26.) 13 In March of 2017, Plaintiff was promoted again to Branch Manager, a 14 position in which his duties covered three Enterprise locations: (1) the Sparks 15 Enterprise; (2) the Fallon Enterprise; and (3) the Enterprise located in the Fallon 16 Naval Air Station (“NAS”). (Id. at ¶ 27.) In this position, Plaintiff allegedly earned 17 a commission based on approximately 65% of the revenue earned at the Sparks 18 Enterprise and 35% at both the Fallon Enterprise and the Falon NAS Enterprise, 19 alongside a base salary of $47,500. (Id. at ¶ 28.) Plaintiff allegedly knew from his 20 time as an Intern at the Sparks Enterprise location that the former Branch 21 Manager of the three locations, Paul Freeman, earned commission based on 22 100% of the revenue earned at those three Enterprise locations. (Id. at ¶ 29.) He 23 also avers upon information and belief that other Branch Managers, a majority 24 of whom are Caucasian, earned commission based on 100% of the revenue at the 25 Enterprise locations they managed. (Id. at ¶ 30.) Plaintiff alleges that this 26 disparity was due to his race and national origin. (Id. at ¶ 31.) 27 Plaintiff alleges that in September 2018, he was passed up for a promotion 28 notwithstanding the fact that he won an award for Nevada Branch Manager of 1 the Year in August 2017. (Id. at ¶¶ 32-33.) The position was allegedly awarded to 2 Plaintiff’s assistant, Cheryl Perryman, who is Caucasian, notwithstanding the 3 fact that Ms. Perryman was less qualified than Plaintiff. (Id. at ¶ 33.) Plaintiff 4 alleges that he was passed up for the promotion due to his race and national 5 origin. (Id. at ¶ 34.) 6 Plaintiff alleges that in September of 2018, he again attempted to discuss 7 his compensation plan with Mr. Brandhagen, but Mr. Brandhagen did not 8 respond for over a month. (Id. at ¶ 35.) Plaintiff states that he “gave his ‘two weeks 9 notice’” to Enterprise on October 17, 2018, and that his employment was 10 terminated on that date. (Id. at ¶ 36.) Plaintiff brings four claims: one claim each 11 for race and national origin discrimination under Title VII of the Civil Rights Act 12 and NRS 613.330(1). Plaintiff attached his Nevada Equal Rights Commission 13 Charge of Discrimination and his Right to Sue Letter to his Complaint. 14 II. MOTION FOR SUMMARY JUDGMENT 15 Defendants brought a Motion for Summary Judgment on February 28, 16 2022. (ECF No. 34.) Defendants argue that Plaintiff has not met his burden to 17 establish a genuine issue of material fact as to whether Plaintiff’s compensation, 18 the terms of his employment, and the denial of his promotion were motivated by 19 discrimination. First, Defendants argue that Plaintiff was not paid differently 20 than his similarly situated counterparts. Defendants explain that pay for 21 Assistant Managers and Branch Managers is based upon a target pay amount 22 that consists of a base salary and an estimated commission based on a 23 percentage of the branch’s profits. (Id. at ¶ 8.) The commission percentages are 24 adjusted by Enterprise based upon the branch’s previous 12-month revenue with 25 a fiscal year running from August 1 to July 31, and the base salaries are adjusted 26 each year for performance and cost of living. (Id.) Some Enterprise locations are 27 much more profitable, so the commission percentages at those locations may be 28 lower in order to meet a similar target pay as another Assistant or Branch 1 Manager at a less profitable location. (Id. at ¶ 11 n.20.) 2 In response to Plaintiff’s allegation that Defendants reduced his 3 commission from 4.5% to 4% in September of 2016 while he was Assistant 4 Manager at the Downtown Reno Enterprise location, Defendants explain that 5 Plaintiff’s first pay plan had a target pay of $50,035 using a base salary of 6 $33,700 and a 4.25% commission rate, and his second pay plan had a target pay 7 of $52,112 using base pay of $34,700 and a 4% commission rate. (Id. at ¶¶ 9- 8 10.) In other words, while his commission percentage rate may have been 9 reduced, his target pay was actually increased by Defendants. Defendants 10 support this explanation with a declaration from Caroline Johansen, the Human 11 Resources Manager for Enterprise, as well as copies of Plaintiff’s pay plans from 12 May 1, 2016 to October 31, 2016 and from September 1, 2016 to February 28, 13 2016. (ECF No. 34-2 Exh. C.) 14 In response to Plaintiff’s allegation that Enterprise reduced Plaintiff’s 15 compensation in November of 2016 after Plaintiff was promoted to Assistant 16 Manager of the Mill Street Enterprise location, Defendants explain that Plaintiff’s 17 new pay plan after he was promoted to the Mill Street location had a target pay 18 of $54,361 using a base salary of $34,700 and a 1.05% commission rate. (ECF 19 No. 34 at ¶ 11.) This is also supported by Ms. Johansen’s declaration and a copy 20 of Plaintiff's pay plan. (ECF No. 34-2 Exh. C.) 21 Plaintiff contests this explanation by stating that he “did not agree with any 22 of these ‘pay plans’ and tried to negotiate in good faith but was never given an 23 opportunity [to] negotiate any pay plans during his tenure.” (ECF No. 39 at 1.) He 24 states that his predecessors were able to negotiate their pay plans but that when 25 he was promoted, Susan Best, Plaintiff’s “group controller,” “decided to control 26 every aspect and made it more difficult for all of the Plaintiffs counterparts to 27 increase their pay through their own hard work” and “switched to pay plans 28 without negotiation and a ‘take it leave it’ attitude by the Defendant.” (Id. at 5.) 1 Defendants provide evidence showing that Plaintiff was not paid less than 2 other employees with similar jobs. Defendants assert that it is simply not true, 3 as Plaintiff contends, that he was paid based on 65% and 35%, respectively, of 4 the revenue. Rather, he was paid a commission percentage based on 100% of the 5 revenue at the three locations. (ECF No. 34 at ¶ 23.) Defendants support this with 6 a copy of Plaintiff’s pay plan for fiscal year 2016-17 as well as a declaration by 7 Joseph Brandhagen. (ECF No. 34-2 Exh. C, Exh. D at ¶ 7.) Defendants state that 8 Mr. Freeman’s commission percentage at his departure was higher than Plaintiff’s 9 because Mr. Freeman had been a Branch Manager for several years prior to 2017. 10 (ECF No. 34-2 Exh. D at ¶ 3.) Defendants further explain that Enterprise believed 11 that Mr. Freeman had become the recipient of a “runaway” pay plan, i.e. a plan 12 that was paying him too much for the size of the location he was running, and 13 that the change in positions was an opportunity for Enterprise to correct this pay 14 plan. (Id.) In response, Plaintiff states that “[i]t was the ‘ideal time’ for defendant 15 to adjust the pay of a location as soon as a non-white manager was promoted to 16 the location.” (ECF No. 39 at 2.) 17 Defendants further argue that Plaintiff’s target pay during his tenure as 18 Branch Manager was approximately equal or favorable when compared to other 19 Branch Managers who reported to Mr. Brandhagen. Defendants explain that 20 when Plaintiff was promoted to the Branch Manager position in March 2017, his 21 target pay was $61,024. (ECF No. 34 at ¶ 12.) Defendants provide the following 22 anonymized information, supported by pay plan documents authenticated by the 23 declaration of Ms. Johansen, regarding other Branch Managers’ pay plans for the 24 2016-17 fiscal year: TH (Caucasian) ($56,011); EG (Caucasian) ($56,098); KD 25 (African-American) ($57,028); JB (Asian) ($57,681); CG (Caucasian) ($57,757); 26 MG (Caucasian) ($58,806); and SB (Asian, Indian-American male) ($62,586) 27 (promoted to Branch Manager November 1, 2017). (Id. at ¶¶ 14-15; ECF No. 34- 28 2 Exh. C). Plaintiff responds by stating that “[s]ome of these managers were out 1 of Las Vegas, NV which defendants decided had a higher cost of living then Reno, 2 NV, hence not comparable[,]” and that “Employee [SB] is of South Indian descent 3 and was treated differently than Plaintiff who is a Sikh Indian American. Proven 4 by higher starting salary as a first time Branch Manager. This is another 5 discriminatory action by Defendant, putting all Indian employees in one category, 6 when they are two very different races in ideology and core values.” (ECF No. 39 7 at 1.) 8 Defendants respond to the allegation that Plaintiff was not promoted to the 9 RideShare Sales Executive position in September of 2018 by explaining that the 10 comments for Ms. Perryman, who was hired, were more positive. One comment 11 about Ms. Perryman was that “She had superior branch performance compared 12 to the other three[,]” while Plaintiff had comments such as “Did not know FY 13 performance, did not display strong research [or] understanding of how to 14 prospect in this position, other candidate was more qualified.” (ECF No. 34 at ¶ 15 24.) Defendants further explain, supported by a declaration from Scott Savarda, 16 that having more rental experience did not necessarily make someone better 17 qualified for the RideShare position. (ECF No. 43 at 6; ECF No. 34-2 Exh. E at ¶¶ 18 2-3.) Plaintiff responds that “The all-white committee for hiring decided against 19 hiring the Branch of the Year and instead hired the assistant of the Branch 20 Manager of the year who then went on to lose the position because she could not 21 perform well in the position the Plaintiff was more then qualified for.” (ECF No. 22 39 at 3.) Defendants deny that Ms. Perryman lost the position due to performance 23 and instead explain that she voluntarily left the position. (ECF No. 43 at 7 n.28.) 24 Finally, Defendants argue that Plaintiff was not constructively discharged 25 when his employment with Defendants ended in October of 2018.1

26 1 Plaintiff’s Complaint does not use the term “constructive discharge,” however, Plaintiff seeks the remedies of back and front pay which are consistent with constructive discharge, and Plaintiff 27 argues in his response that he was constructively discharged. (Complaint at 9-10; ECF No. 39 at 6.) Construing Plaintiff’s pro se Complaint liberally, the Court will consider Plaintiff’s Complaint 28 as raising the issue of constructive discharge. 1 Plaintiff provides one photograph with his response which, he argues, 2 shows racial animus. The exhibit is titled "Racist and Discriminatory Picture of 3 Plaintiff’s Supervisors (Joseph Brandhagen and Eric Whiteman) Putting Tampons 4 Throughout Plaintiff’s Vehicle.” (ECF No. 39 at 10.) Taken from Plaintiff’s point of 5 view in the front passenger seat looking back, the photograph depicts two men, 6 the driver and a passenger sitting behind the driver, wearing sunglasses and 7 similar blue shirts, where the back passenger is holding a white cylindrical object 8 consistent with the shape of a tampon and smiling. The back passenger has a 9 handwritten label of “Joseph Brandhagen,” and the driver, who can be seen 10 smiling, has a label of “Eric Whiteman.” Plaintiff cites this exhibit in his response 11 when he explains that “Plaintiff took the action of leaving the toxic environment 12 that the Defendant had surrounded him with. (see exhibit A)” 13 III. LEGAL STANDARD 14 “The purpose of summary judgment is to avoid unnecessary trials when 15 there is no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. 16 Dep’t of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is 17 appropriate when the pleadings, the discovery and disclosure materials on file, 18 and any affidavits “show there is no genuine issue as to any material fact and 19 that the movant is entitled to judgment as a matter of law.” Celotex Corp. v. 20 Catrett, 477 U.S. 317, 322 (1986). An issue is “genuine” if there is a sufficient 21 evidentiary basis on which a reasonable fact-finder could find for the nonmoving 22 party and a dispute is “material” if it could affect the outcome of the suit under 23 the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). 24 The court must view the facts in the light most favorable to the non-moving party 25 and give it the benefit of all reasonable inferences to be drawn from those facts. 26 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 27 The party seeking summary judgment bears the initial burden of informing 28 the court of the basis for its motion and identifying those portions of the record 1 that demonstrate the absence of a genuine issue of material fact. Celotex, 477 2 U.S. at 323. Once the moving party satisfies Rule 56’s requirements, the burden 3 shifts to the non-moving party to “set forth specific facts showing that there is a 4 genuine issue for trial.” Anderson, 477 U.S. at 256. The nonmoving party “may 5 not rely on denials in the pleadings but must produce specific evidence, through 6 affidavits or admissible discovery material, to show that the dispute exists,” Bhan 7 v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more 8 than simply show that there is some metaphysical doubt as to the material facts.” 9 Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita Elec. 10 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). 11 IV. DISCUSSION 12 To show a prima facie case of disparate treatment under Title VII of the 13 Civil Rights Act and NRS 613.330(1)2, a plaintiff must offer evidence that “give[s] 14 rise to an inference of unlawful discrimination.” Reynaga v. Roseburg Forest 15 Products, 847 F.3d 678, 690 (9th Cir. 2017). A plaintiff may establish an inference 16 of discrimination either by satisfying the prima facie elements from McDonnell 17 Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) or, in the alternative, by 18 producing “direct or circumstantial evidence of discrimination demonstrating 19 that a discriminatory reason ‘more likely than not motivated’ the employer.” Id. 20 at 691 (citing Metoyer v. Chassman, 504 F.3d 919, 931 (9th Cir. 2007)); see also 21 McGinest v. GTE Service Corp., 360 F.3d 1103 (9th Cir. 2004). 22 Under the McDonnell Douglas framework, “a plaintiff alleging disparate 23 treatment under Title VII must first establish a prima facie case of discrimination. 24 Specifically, the plaintiff must show that: “(1) he belongs to a protected class; (2) 25 he was qualified for the position; (3) he was subject to an adverse employment 26 action; and (4) similarly situated individuals outside his protected class were

27 2 NRS 613.330 is almost identical to Title VII and courts apply the same analysis. Stewart v. SBE Ent. Grp., LLC, 239 F. Supp. 3d 1235, 1246 n.61 (D. Nev. 2017) (citing Apeceche v. White Pine 28 Cty., 96 Nev. 723, 615 P.2d 975, 977–78 (1980)). 1 treated more favorably.” Chuang v. Univ. of Cal. Davis Bd. of Trustees, 225 F.3d 2 1115, 1123 (9th Cir.2000). When the plaintiff demonstrates their prima facie 3 case, the burden shifts to the defendant to provide a legitimate, non- 4 discriminatory reason for the adverse employment action. Reynaga, 847 F.3d at 5 691. If the defendant meets this burden, then the plaintiff “must then raise a 6 triable issue of material fact as to whether the defendant's proffered reasons are 7 mere pretext for unlawful discrimination.” Id. 8 Plaintiff claims in his Complaint that “Defendants failed to promote Plaintiff 9 and discriminated against Plaintiff with respect to his compensation, terms, 10 conditions and/or privileges of employment because of Plaintiff's race [and 11 national origin.]” (Complaint at ¶¶ 43-58.) The Court will consider three potential 12 adverse employment actions: (1) Plaintiff’s allegedly lower rate of compensation; 13 (2) the allegedly discriminatory denial of Plaintiff’s promotion; and (3) Plaintiff’s 14 alleged constructive discharge. 15 A. COMPENSATION 16 Plaintiff makes two claims regarding his compensation: (1) Defendants 17 reduced Plaintiff’s compensation on two occasions while he was Assistant 18 Manager in 2016; (2) Defendants paid Plaintiff at a different rate than his 19 predecessor Paul Freeman when Plaintiff was Branch Manager in 2017. 20 Regarding the first claim, Defendants explain that while Plaintiff’s commission 21 rate may have been reduced, his target pay was actually increased during the 22 changes in question, and Defendants proffer authenticated pay plan documents 23 to support these claims. (ECF No. 34-2 Exh. C.) Plaintiff does not contest the 24 authenticity of these documents or proffer competing evidence, instead 25 responding that he “did not agree with any of these ‘pay plans’ and tried to 26 negotiate in good faith but was never given an opportunity[, u]nlike his 27 counterparts.” (ECF No. 39 at 1.) Plaintiff has not shown that he suffered an 28 1 adverse employment action,3 so Plaintiff has not met his burden to establish a 2 prima facie case of discrimination regarding these incidents. 3 Regarding the second claim, Defendants first proffer evidence that Plaintiff 4 was not in fact paid on the basis of 65% and 35%, respectively, of the revenue at 5 the Sparks, Fallon, and Fallon NAS Enterprise locations. (ECF No. 34 at ¶ 23.) 6 Defendants explain the difference between Plaintiff’s pay and Paul Freeman’s pay 7 with two points: (1) Mr. Freeman had worked as a Branch Manager at that 8 location for several years prior to Plaintiff, which would explain his increased pay; 9 and (2) Enterprise was aware that Mr. Freeman had become the recipient of a 10 “runaway” pay plan and decided to correct the pay plan structure when Plaintiff 11 took the position. (ECF No. 34-2 Exh. D at ¶ 3; ECF No. 39 at 2.) Defendants also 12 proffer evidence of the target pay of seven other Branch Managers for the 2016- 13 17 fiscal year showing that Plaintiff’s target pay was higher than six of the seven. 14 (ECF No. 34-2 Exh. C.) 15 Plaintiff does not contest the authenticity of Defendant’s exhibits nor 16 proffer competing evidence. Regarding the other Branch Managers, Plaintiff 17 responds only by claiming, without evidence, that some Branch Managers were 18 operating in the Las Vegas region “which defendants decided had a higher cost of 19 living then Reno, NV, hence not comparable.” (ECF No. 39 at 2.) However, as 20 Defendants point out, having a higher cost of living would reasonably lead to 21 higher compensation, therefore the fact that these individual were compensated 22 less than Plaintiff actually weakens Plaintiff’s claim. (ECF No. 43 at 2-3.) 23 Regarding Mr. Freeman, Plaintiff responds only with conclusory statements that 24 the change in Plaintiff’s pay was motivated by discrimination. Plaintiff has not 25 shown that he suffered an adverse action regarding his compensation, nor has 26 Plaintiff shown that similarly situated individuals outside of his protected class 27 3 The issue of whether Plaintiff was denied the ability to negotiate the terms of his employment 28 will be considered under the issue of constructive discharge, infra. 1 were treated more favorably. See Freyd v. Univ. of Oregon, 990 F.3d 1211, 1229 2 (9th Cir. 2021) (affirming grant of summary judgment for the defendant based on 3 lack of disparate treatment regarding compensation). 4 B. DENIAL OF PROMOTION 5 Plaintiff claims that he was denied a promotion to the RideShare Sales 6 Executive position for discriminatory reasons, citing the fact that the position 7 went to an allegedly less-qualified Caucasian woman, Cheryl Perryman, and that 8 the hiring committee was “all-white[.]” (ECF No 39 at 3.) In response, Defendants 9 explain with the declaration from Scott Savarda, who was on the hiring 10 committee, that Ms. Perryman was similarly qualified to Plaintiff since “[t]he 11 RideShare position focused more on sales abilities than rental experience and a 12 Branch Manager would not necessarily be better suited for the position than an 13 Assistant Manager.” (ECF No. 34-2 Exh. E at ¶ 3.) Defendants also proffer the 14 interview notes which, among other comments critical of Plaintiff, stated “other 15 candidate was more qualified.” (ECF No. 34-2 Exh. E.) 16 While Plaintiff has met the initial burden of showing that he suffered an 17 adverse employment action that similarly situated individuals in his protected 18 class did not suffer, Defendants have articulated legitimate, non-discriminatory 19 reasons for their decision. Plaintiff has not proffered any evidence regarding this 20 claim or contested the authenticity of Defendants’ proffered evidence. Plaintiff’s 21 conclusory statements are insufficient to create a genuine issue of material fact 22 for trial. Villalta v. City & Cnty. of San Francisco, 448 F. App'x 697, 699 (9th Cir. 23 2011); cf. Dominguez-Curry v. Nevada Transp. Dep't, 424 F.3d 1027, 1039 (9th 24 Cir. 2005) (reversing grant of summary judgment for the defendant in a failure- 25 to-promote discrimination case where there was evidence that agents of the 26 defendant had made comments exhibiting hostility toward women and a 27 preference for hiring a man for the position). 28 /// 1 C. CONSTRUCTIVE DISCHARGE 2 Plaintiff claims that he was constructively discharged when he left 3 Enterprise in October of 2018 because it was a “toxic environment[.]” (ECF No. 4 39 at 6.) The doctrine of constructive discharge works to convert an employee’s 5 nominally voluntary resignation into an involuntary termination for remedial 6 purposes when the employee resigns because working conditions became so 7 intolerable that a reasonable person in the employee’s position would have felt 8 compelled to resign. Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007). The 9 bar for a claim of constructive discharge is “high.” Id. The Court will consider two 10 allegations relevant to Plaintiff’s claim of constructive discharge: (1) Defendants’ 11 alleged refusal to negotiate with Plaintiff; and (2) the photograph which Plaintiff 12 alleges shows discriminatory animus toward Plaintiff. 13 On the first, Plaintiff has not proffered any evidence to show that 14 Defendants did in fact engage in negotiations with other similarly situated 15 employees, nor does Plaintiff describe any specific employees or managers who 16 allegedly engaged in such negotiations. On the second, the photograph proffered 17 by Plaintiff—the only substantive evidence proffered by Plaintiff in this case— 18 does not demonstrate a sufficiently intolerable work environment to allow 19 Plaintiff’s claim for constructive discharge to survive summary judgment. Even 20 assuming the authenticity of the photograph, the photograph does not clearly 21 depict Joseph Brandhagen and Eric Whiteman “putting tampons throughout 22 Plaintiff’s vehicle[,]” as Plaintiff alleges. (ECF No. 39 at 8.) Rather, it shows Mr. 23 Brandhagen (again assuming that Plaintiff’s identification of the individuals in 24 the car is correct) holding what appears to be a single tampon while smiling with 25 Mr. Whiteman and Plaintiff in the vehicle with him. As Defendants point out, 26 Plaintiff does not explain how this photo shows animus against Plaintiff for his 27 race or national origin. Even assuming, arguendo, that this photograph does 28 evince some animus toward Plaintiff, a single instance of employment 1 discrimination is generally insufficient as a matter of law to support a finding of 2 constructive discharge. Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th 3 Cir. 1987). The Court grants Defendants’ motion for summary judgment on 4 Plaintiff’s claims under Title VII and NRS 613.330(1). 5 V. CONCLUSION 6 Plaintiff has not carried his burden to establish a genuine issue of material 7 fact for trial on his discrimination claims. Fundamentally, Plaintiff’s case suffers 8 from a lack of evidence proffered by Plaintiff in response to the summary 9 judgment motion. Plaintiff was advised by the Court on March 1, 2022, that 10 Plaintiff was required to set out specific facts in the form of admissible evidence 11 that contradict the facts shown in the defendant’s declarations and documents. 12 (ECF No. 36.) Plaintiff submitted no affidavits, depositions, documents, or other 13 evidence beyond the single photograph. (The NERC Charge of Discrimination and 14 Right to Sue Letter are evidence that Plaintiff exhausted his administrative 15 remedies, but are not substantive evidence of discrimination.) 16 Because the Court grants Defendants’ motion for summary judgment on 17 the issue of discrimination, the Court need not analyze whether Enterprise 18 Holdings, Inc. and EAN Holdings, LLC should be dismissed for lack of an 19 employment relationship with Plaintiff. The Court also need not consider whether 20 Plaintiff’s state law claims should be dismissed as duplicative of the Tile VII 21 claims. Furthermore, because the Court grants Defendants’ motion for summary 22 judgment, the Court need not consider Defendants’ Motion to Dismiss Based on 23 Plaintiff’s Untrue In Forma Pauperis Application (ECF No. 35). 24 It is therefore ordered that Defendants’ Motion for Summary Judgment 25 (ECF No. 34) is granted. 26 It is further ordered that Defendants’ Motion to Dismiss Based on Plaintiff’s 27 Untrue In Forma Pauperis Application (ECF No. 35) is denied as moot. 28 It is further ordered that this case be dismissed. 1 2 3 DATED THIS 6 day of January 2023. 4 ° Aras jlosed Ter

7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28