Smith v. United Parcel Service, Inc.

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                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 28 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

KEVIN R. SMITH,                                  No. 12-15012

              Plaintiff - Appellant,             D.C. No. 2:08-cv-01313-RCJ

  v.
                                                 MEMORANDUM*
UNITED PARCEL SERVICE, INC.,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Robert C. Jones, District Judge, Presiding

                           Submitted January 13, 2014**
                             San Francisco, California

Before: GRABER and NGUYEN, Circuit Judges, and DEARIE,*** Senior District
Judge.

       Plaintiff Kevin Smith appeals the district court’s grant of summary judgment

to defendant United Parcel Services, Inc. (“UPS”). We review de novo and may

         *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
          The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
       ***
          The Honorable Raymond J. Dearie, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
affirm on any ground supported by the record. Petroliam Nasional Berhad v.

GoDaddy.com, Inc., 737 F.3d 546, 549 (9th Cir. 2013). Upon review, we affirm

for the reasons set forth below.

      In Nevada, an employer has a general duty to use reasonable care to ensure

that an employee is properly trained and supervised in the performance of his or

her position. Vinci v. Las Vegas Sands, Inc., 984 P.2d 750, 751 (Nev. 1999); Hall

v. SSF, Inc., 930 P.2d 94, 99 (Nev. 1996). As to supervision, Smith's deposition

testimony shows that his supervisors at UPS took reasonable and proportionate

steps to address his complaints about other employees. As to training, UPS put

forward evidence that it promulgated anti-harassment policies to its employees and

trained its supervisors regarding harassment, and there is nothing in the record to

suggest that the training or policies were deficient. Even drawing all reasonable

inferences in Smith’s favor, the record will not support the conclusion that UPS

breached its duty of care. Summary judgment was proper because Smith failed to

raise a triable issue of fact. Celotex Corp. V. Catrett, 477 U.S. 317, 322-23 (1986).

      AFFIRMED.




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