Gamino v. Renown Health ( 2015 )

 To show a retaliatory discharge, Gamin° was required to
demonstrate that his filing a workers' compensation claim "was the
proximate cause of his discharge." Allum v. Valley Bank of Nev., 114 Nev.
1313, 1319-20, 970 P.2d 1062, 1066 (1998). Renown's motion for summary
judgment undermined Gamino's case by showing that his termination was
not related to his workers' compensation claim. See Cuzze v. Univ. &
Cmty. Coll. Sys. of Nev., 123 Nev. 598, 602, 172 P.3d 131, 134 (2007)
(observing that a moving party who does not bear the burden of
persuasion at trial satisfies the burden of production on summary
judgment by "submitting evidence that negates an essential element of the
nonmoving party's claim"). In order to defeat Renown's motion, Gamino
was required to "by affidavit or other admissible evidence, introduce
specific facts that show a genuine issue of material fact." Id. at 602-03,
172 P.3d at 134. Instead of doing so, Gamino attacked some, but not all, of
the evidence that Renown provided as inadmissible.
In this regard, the district court properly considered Renown's
affidavits, which were offered, in part, to show the effect of third-party
statements upon the listener and the reason for Renown's investigation
into Gamino's actions. See Grosjean v. Imperial Palace, Inc., 125 Nev. 349,
362, 212 P.3d 1068, 1077 (2009) C[A] statement merely offered to show
that the statement was made and the listener was affected by the
statement, and which is not offered to show the truth of the matter
asserted, is admissible as non-hearsay." (quoting Wallach v. State, 106
Nev. 470, 473, 796 P.2d 224, 227 (1990))). Because Gamin° proffered no
evidence conflicting with Renown's, it was not necessary for a jury to
consider the declarants' credibility. See Gaxiola v. State, 121 Nev. 638,
650, 119 P.3d 1225, 1233 (2005) ("The jury determines the weight and
credibility to give conflicting testimony."). And finally, the temporal
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proximity of Gamino's workers' compensation claim and his termination,
in the absence of other circumstances and in light of Renown's preexisting
investigation into Gamino's alleged breach of confidentiality, does not
defeat summary judgment. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S.
268, 272-73 (2001) (noting that an employer proceeding with an action
that was contemplated prior to the occurrence of a protected activity
suggests that the action was not caused by the protected activity, and that
an adverse employment action must be very close in time to the protected
activity in order for temporal proximity to suggest causality); Green v.
Lowe's Home Ctrs., Inc., 199 S.W.3d 514, 518-23 (Tex. Ct. App. 2006)
(stating that "knowledge of a workers' compensation claim alone does not
establish a causal link between the alleged discriminatory behavior and
the filing of a claim sufficient to defeat summary judgment," and
upholding summary judgment when the employee failed to establish a
causal link between termination and the workers' compensation claim).
Accordingly, we perceive no error in the district court's summary
judgment, and we
ORDER the judgment of the district court AFFIRMED.'
LC\ , C.J.
Hardesty
Gibbons
'We have considered Gamino's other arguments on appeal and
conclude that they do not warrant reversal of the district court's summary
judgment.
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cc: Hon. Elliott A. Sattler, District Judge
Jonathan L. Andrews, Settlement Judge
Brian R. Morris
Littler Mendelson/Las Vegas
Washoe District Court Clerk
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