Michael Curley v. City of North Las Vegas , 772 F.3d 629 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL P. CURLEY, No. 12-16228
Plaintiff-Appellant,
D.C. No.
v. 2:09-cv-01071-KJD-VCF
CITY OF NORTH LAS VEGAS,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted
September 10, 2014—San Francisco, California
Filed December 2, 2014
Before: Mary M. Schroeder, John B. Owens,
and Michelle T. Friedland, Circuit Judges.
Opinion by Judge Friedland
2 CURLEY V. CITY OF NORTH LAS VEGAS
SUMMARY*
Americans with Disabilities Act
The panel affirmed the district court’s summary judgment
in an action alleging employment discrimination and
retaliation in violation of the Americans with Disabilities
Act.
The plaintiff alleged that the City of Las Vegas
discriminated against him by firing him because of his
hearing impairment and retaliated against him for filing an
EEOC complaint and requesting an accommodation. The
panel held that the plaintiff failed to establish a genuine issue
of material fact as to whether the City’s stated reason for
firing him—his long history of threatening coworkers—was
pretextual.
COUNSEL
Michael P. Balaban (argued), Law Offices of Michael P.
Balaban, Las Vegas, Nevada, for Plaintiff-Appellant.
Sandra Douglass Morgan (argued) and Jeffrey F. Barr, City
Attorneys, North Las Vegas, Nevada, for Defendant-
Appellee.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CURLEY V. CITY OF NORTH LAS VEGAS 3
OPINION
FRIEDLAND, Circuit Judge:
Michael Curley appeals the district court’s grant of
summary judgment in favor of the City of North Las Vegas
on his claims alleging discrimination and retaliation in
violation of the Americans with Disabilities Act (“ADA”).
First, we consider whether a doctor’s finding that Curley did
not pose a safety threat belies one of the City’s stated reasons
for firing him—his long history of threatening coworkers.
Second, we consider whether the City’s prior leniency toward
Curley’s misconduct provides reason to doubt that the City
fired him partly because of that misconduct. We conclude
that neither provides a basis for finding the City’s
explanations pretextual, so we affirm the district court’s grant
of summary judgment.
I. Background
Michael Curley was an employee of the City of North Las
Vegas from 1996 until 2009. In 2005, Curley became a
pretreatment inspector—a position that primarily entailed
cleaning sewers and preventing sewer blockages.
Curley received many oral and written reprimands during
his employment with the City. His disciplinary record
reflects that, over the course of several years, Curley had
numerous verbal altercations with coworkers, made
insensitive remarks about a fellow employee’s motorcycle
accident, damaged City property, and made several threats of
violence against coworkers. Curley’s disciplinary record also
includes statements by coworkers regarding his constant
4 CURLEY V. CITY OF NORTH LAS VEGAS
complaints and negative remarks about his managers and the
City.
In December 2008, Curley filed a charge of
discrimination with the Equal Employment Opportunity
Commission (“EEOC”).1 The charge alleged that the City
had denied Curley’s request for accommodation of a hearing
impairment. The charge also alleged that the City was
retaliating against him for having filed a prior charge of
retaliation and race and age discrimination.
In January 2009, Curley made a second request that the
City provide him an accommodation for a hearing
impairment. In his request, he complained that the noise
from one of the trucks he operated was causing his hearing to
deteriorate. Curley asked to be relieved from all duties that
required him to be near that type of truck. Because those
duties were essential to his position, the City rejected his
request and instead recommended that he use dual hearing
protection.
Shortly after his correspondence with the City regarding
his second request for accommodation, Curley was involved
in another incident with a coworker. The coworker asked
Curley to remove his hearing protection so that the two of
them could communicate about a work-related task. In
response, Curley began swearing and asking the coworker
whether he thought he was a doctor. The incident prompted
the City to place Curley on administrative leave and to launch
an investigation into his behavior.
1
Curley also filed this charge with the Nevada Equal Rights
Commission. For simplicity, we will refer to the NERC and the EEOC
collectively as the EEOC.
CURLEY V. CITY OF NORTH LAS VEGAS 5
As part of the investigation, the Human Resources
Department interviewed City employees and asked about
their interactions with Curley. The interviews revealed that
Curley had repeatedly threatened his coworkers and their
families. For example, he threatened to put a bomb under a
car, insinuated that he had mafia connections, and talked
about giving a “blanket party”—which would involve
throwing a blanket over a person’s head and beating him.
One coworker reported that Curley threatened to kick his
teeth out if the coworker did not join a union. On another
occasion, Curley threatened to shoot his supervisor’s children
in the kneecaps.
The interviews also revealed details about Curley’s work
habits. Multiple coworkers said that Curley regularly
conducted personal business while at work, sometimes
spending up to three hours on his cell phone. It also appears
that Curley was operating an ADA consulting business.
Many of the calls he made during work were about the
business, and coworkers saw him approach disabled
individuals to discuss potential lawsuits.
Finally, the City scheduled Curley for a fit-for-duty
evaluation as part of the investigation. The evaluation
assessed only whether Curley could return to work and
whether he was a danger to himself or others. The doctor
who conducted the evaluation determined that Curley was fit
for duty and was not a danger to himself or others.
At the conclusion of the investigation, Human Resources
recommended that the City conduct a hearing to determine
how to discipline Curley. After the hearing, the City decided
to fire him. A memorandum explaining the termination
included the following charges: nonperformance of duties due
6 CURLEY V. CITY OF NORTH LAS VEGAS
to excessive phone calls, intimidation of coworkers by threats
of violence, conducting and soliciting personal business on
work time, and making disparaging remarks about his
supervisors and the City.
Shortly after his termination, Curley filed a charge with
the EEOC alleging discrimination and retaliation under the
ADA. Curley received a right-to-sue notice and filed suit in
state court in Nevada. The City removed the case to the
United States District Court for the District of Nevada, which
granted the City’s motion for summary judgment. Curley
appealed.
II. Standard of Review
A district court’s grant of summary judgment is reviewed
de novo. Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 954
(9th Cir. 2013). We must determine, viewing the evidence in
the light most favorable to the nonmoving party, whether
there are any genuine issues of material fact and whether the
district court correctly applied the substantive law. Id. We
may affirm a grant of summary judgment on any ground
supported by the record, even one not relied upon by the
district court. Walton v. U.S. Marshals Serv., 492 F.3d 998,
1009 n.4 (9th Cir. 2007).
III. Discussion
The ADA prohibits an employer from “discriminat[ing]
against a qualified individual on the basis of disability.”
42 U.S.C. § 12112(a). In addition, the ADA prohibits
retaliating against an employee who engages in certain
protected activities. See id. § 12203(a). Curley argues that
the City discriminated against him by firing him because of
CURLEY V. CITY OF NORTH LAS VEGAS 7
his hearing impairment. He also contends that the City fired
him in retaliation for his filing an EEOC complaint and
requesting an accommodation.
Discrimination and retaliation claims under the ADA are
both subject to the burden-shifting framework outlined in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04
(1973). See Raytheon Co. v. Hernandez, 540 U.S. 44, 49–50
& n.3 (2003); Brown v. City of Tucson, 336 F.3d 1181,
1186–87 (9th Cir. 2003); Snead v. Metro. Prop. & Cas. Ins.
Co., 237 F.3d 1080, 1093 (9th Cir. 2001). Under that
framework, an employee challenging an adverse employment
action has the initial burden of establishing a prima facie case
of discrimination (or retaliation). The burden then shifts to
the employer to provide a legitimate, nondiscriminatory (or
nonretaliatory) reason for the adverse employment action. If
the employer does so, then the burden shifts back to the
employee to prove that the reason given by the employer was
pretextual. See Raytheon, 540 U.S. at 49–52 & n.3; Brown,
336 F.3d at 1187; Snead, 237 F.3d at 1093.
A. Discrimination
We need not decide whether Curley can establish a prima
facie case of discrimination, because, even if he could, he has
not raised a genuine issue of material fact as to whether the
City’s reasons for terminating him were pretextual. Curley
concedes that, assuming he could establish a prima facie case,
the City has carried its burden of providing legitimate,
nondiscriminatory reasons for firing him. The City gave four
reasons for Curley’s termination: nonperformance of duties
due to excessive phone calls, intimidation of coworkers by
threats of violence, conducting and soliciting personal
business on work time, and making disparaging remarks
8 CURLEY V. CITY OF NORTH LAS VEGAS
about his supervisors and the City. Curley has failed to offer
any basis for believing those reasons were pretext for
discrimination.
Curley tries to show pretext by pointing to the results of
his fit-for-duty evaluation. The doctor who performed that
evaluation determined that Curley was fit for duty and not a
danger to himself or others. Curley contends that the City’s
decision to fire him despite the conclusions of the evaluation
creates a genuine issue of material fact as to the credibility of
the City’s stated reasons for firing him.
Curley’s argument fails for two reasons. First, the City
explained that it fired Curley because of the threats he had
made in the past, not the danger of future violence. The
Seventh Circuit addressed an analogous situation in
Bodenstab v. County of Cook, 569 F.3d 651 (7th Cir. 2009).
In that case, the employer fired the plaintiff for making
threats and informed him that it believed he was a direct
threat to the health and safety of his coworkers. Id. at 658.
The court determined that it did not need to decide whether
the plaintiff actually posed a “direct threat” as defined by the
ADA. Id.2 The Seventh Circuit held that, even if the plaintiff
was not a direct threat, summary judgment was appropriate
because the employer “had a legitimate nondiscriminatory
reason for firing [him]—the threats he had already made.” Id.
at 659. In other words, the plaintiff’s threats were an
independent and sufficient basis for dismissal, regardless of
whether he posed an actual danger.
2
Under the ADA, it is a defense against a charge of discrimination that
the employee was a “direct threat to the health or safety of other
individuals in the workplace.” 42 U.S.C. § 12113(a)–(b).
CURLEY V. CITY OF NORTH LAS VEGAS 9
Like the plaintiff in Bodenstab, Curley was fired for
threats he had already made. The City’s notice of termination
specifically relied on Curley’s history of intimidating
coworkers. Nothing in the fit-for-duty evaluation addressed
that history. Thus, even if the City had Curley evaluated to
determine whether he posed a danger to other employees, the
City represented that it fired him for past threats, not for the
potential of future violence. Curley presented no evidence
that the City’s reliance on past threats was actually pretext for
discrimination.
Second, even if the fit-for-duty evaluation somehow
undermined the credibility of the City’s stated concern about
Curley’s threats, the City put forward other reasons for
terminating him: nonperformance of duties, conducting
personal business at work, and making disparaging remarks
about his supervisors and the City. Curley does not even try
to refute these reasons. Disputing only one of several well-
supported, independently sufficient reasons for termination is
generally not enough to defeat summary judgment. See
Cotton v. City of Alameda, 812 F.2d 1245, 1248 (9th Cir.
1987) (“We must consider whether a genuine issue exists
with respect to the credibility of each of the employer’s
proffered explanations.”); Jaramillo v. Colo. Judicial Dep’t,
427 F.3d 1303, 1309 (10th Cir. 2005) (per curiam) (“[A]s a
general rule, an employee must proffer evidence that shows
each of the employer’s justifications are pretextual.”
(alteration in original) (internal quotation marks omitted)).
There is no reason to depart from that rule here.3
3
A plaintiff’s attack on an employer’s legitimate, nondiscriminatory
reasons may sometimes defeat summary judgment without discrediting all
of the employer’s stated reasons. For example, this could be true when:
10 CURLEY V. CITY OF NORTH LAS VEGAS
B. Retaliation
As with his discrimination claim, we need not decide
whether Curley established a prima facie case of retaliation
because he cannot show pretext. Curley argues that, because
the City tolerated his bad behavior for years before his recent
protected activity (filing an EEOC claim and making an
accommodation request), his termination must be retaliatory.
But Curley wrongly assumes that the City was aware of the
severity and scope of his misconduct during the years in
which it refrained from terminating him. In fact, after his
protected activity, Curley instigated yet another altercation
(1) the reasons are so intertwined that a showing of
pretext as to one raises a genuine question whether the
remaining reason is valid, see [Russell v. Acme-Evans
Co., 51 F.3d 64, 70 (7th Cir. 1995)]; (2) the pretextual
character of one explanation is “so fishy and
suspicious,” id., that a jury could “find that the
employer (or its decisionmaker) lacks all credibility,”
Chapman v. AI Transport, 229 F.3d 1012, 1050 (11th
Cir. 2000) (en banc) (Birch, J., concurring and
dissenting); (3) the employer offers a plethora of
reasons, and the plaintiff raises substantial doubt about
a number of them, [Tyler v. RE/MAX Mountain States,
Inc., 232 F.3d 808, 814 (10th Cir. 2000)]; (4) the
plaintiff discredits each of the employer’s objective
explanations, leaving only subjective reasons to justify
its decision, see Aka v. Wash. Hosp. Ctr., 156 F.3d
1284, 1298–99 (D.C. Cir. 1998) (en banc); or (5) the
employer has changed its explanation under
circumstances that suggest dishonesty or bad faith, Cole
v. Ruidoso Mun. Schs., 43 F.3d 1373, 1380–81
(10th Cir. 1994).
Jaramillo, 427 F.3d at 1310 (bracketed citations replacing short form
citations). No circumstances like these are present here.
CURLEY V. CITY OF NORTH LAS VEGAS 11
with a coworker, which prompted the City to investigate his
behavior. This investigation revealed the full extent of his
misconduct, including several additional, independently
sufficient bases for firing him. Curley does not contest these
additional bases. Given this, the City’s failure to fire Curley
sooner does not constitute evidence from which a jury could
find that the stated reasons for firing Curley were pretextual.
Curley also argues that the fact that the City fired him
within two months of his protected activity is itself evidence
of pretext. It is true that very close temporal proximity
between a protected activity and an adverse employment
action can be sufficient evidence of a causal link between the
two to support a prima facie showing of retaliation. See
Brown, 336 F.3d at 1187. But the new information revealed
by the City’s investigation defeats any causal inference that
might otherwise follow from the temporal proximity between
his protected activity and his termination. The timing here
therefore does nothing to refute the City’s legitimate
explanations for the adverse employment action, making
summary judgment appropriate even if Curley has established
a prima facie case. See Hashimoto v. Dalton, 118 F.3d 671,
680–81 (9th Cir. 1997) (holding that, although “the timing of
the[] events suffice[d] to establish a minimal prima facie case
of retaliation, it d[id] nothing to refute” the employer’s stated
legitimate reasons for disciplining the plaintiff).
IV. Conclusion
For the foregoing reasons, we AFFIRM the district
court’s order granting summary judgment for the City.
AFFIRMED.