Canada v. McHugh

Filing 48

ORDER re Motion for Summary Judgment 34 . Signed by Judge Sharon L. Gleason on 04/27/2016. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
WILLIAM LAWRENCE CANADA,
Plaintiff,
v.
JOHN M. MCHUGH, Secretary of the
Army,
Defendant.

Case No. 4:14-cv-00009-SLG

ORDER RE SUMMARY JUDGMENT
This is an employment discrimination action brought by a self-represented litigant
against his former employer. Before the Court at Docket 34 is Defendant John M.
McHugh’s Motion for Summary Judgment. The motion is unopposed; Plaintiff William
Lawrence Canada did not file any response to the motion, although he had requested
and received additional time to do so. 1 In early 2013, Mr. Canada was removed from his
job at Fort Greely, Alaska where he had worked for the United States Army as an Alcohol
and Drug Control Officer. He asserts a claim for wrongful termination, because his
removal occurred after he filed an equal employment opportunity (EEO) complaint
alleging age discrimination. He also asserts related claims for age discrimination and a
hostile work environment. 2

1

2

See Docket 47.

Mr. Canada used the court form for an employment discrimination complaint, which cites to
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. However, Title VII does not protect
against age discrimination; rather, Mr. Canada’s claims fall under the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 621 et seq. and the Court has subject matter jurisdiction
on that basis. See also 28 U.S.C. § 1331 (federal question jurisdictional statute).

BACKGROUND
A.

Factual Background
Mr. Canada’s complaint is directed at the alleged conduct of Fort Greely’s Deputy

Garrison Commander and the alleged conduct of Mr. Canada’s direct supervisor, the
Human Resources (HR) Director. The trouble between Mr. Canada and his superiors
appears to have begun in earnest when Mr. Canada “refused to plan with [the HR
Director] to allow [a certain coworker] to urinalysis test [him] in [March, 2012].” 3 Mr.
Canada acknowledges that his job required urinalysis testing, but asserts that he had
“satisfied” that requirement with a “Pre-Employment urinalysis test,” and he refused the
testing because he “had lost all faith in [the coworker’s] integrity.” 4 Mr. Canada also
asserts that he had a conversation with an Army drug testing specialist who informed him
that “there is no requirement by higher headquarters” for him to be urinalysis tested. Mr.
Canada asserts that when he shared this information with the HR Director, she “became
irate threatening me in an email with immediate discipline if I ever went over her head
again to clarify anything with anyone.” 5 Mr. Canada initiated EEO proceedings against
the HR Director on or about June 26, 2012 with respect to these and other statements. 6
The problems were exacerbated when Mr. Canada applied for a managerial

3

Docket 8-2 (Second Supplement to Amended Complaint) at 3.

4

Docket 8-2 at 2–3.

5

Docket 8-2 at 3.

6

Docket 34-3 at 29.

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vacancy in the summer of 2012. Mr. Canada asserts that both the Deputy Garrison
Commander and the HR Director knew his age when they “made age discriminatory
remarks against [him] . . . during their . . . recruitments for the [] vacancy.” 7 Mr. Canada’s
complaint does not elaborate on the alleged remarks. However, Defendant recites some
of the alleged comments in the motion for summary judgment and included a number of
documents from Mr. Canada’s EEO proceedings as exhibits to that motion. These
exhibits include Mr. Canada’s Formal Complaint of Discrimination filed with the Army’s
EEO office on August 3, 2012. 8 The facts gleaned from that document and from Mr.
Canada’s filings in this case, taken as true for the purposes of this summary judgment
determination, are as follows:
•

On May 15, 2012, when Mr. Canada refused to allow the coworker to
conduct a urinalysis test on him, the HR Director twice told Mr. Canada, “Put
on your ‘Big Boy pants’ and grow up.”

•

On May 24, 2012, when Mr. Canada again refused the urinalysis, the HR
Director again twice told Mr. Canada, “Put on your ‘Big Boy pants’ and grow
up” and he “told her that was offensive to [him], and asked her to stop saying
that.”

•

On June 18, 2012, the HR Director told Mr. Canada “how extremely upset”
she was for him “going over [her] head,” and issued him a “strong verbal
warning of an impending letter of reprimand” if he did so again. When Mr.
Canada asked during this exchange about the job vacancy “[the HR
Director] sarcastically replied ‘We’re building a matrix to evaluate younger

7

Docket 8-2 at 3. Mr. Canada indicates in his filings that he turned 66 years of age on January
18, 2013. Docket 8-2 at 4.

8

Docket 34-3 at 13–14.

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candidates.’”
•

On July 17, 2012, at a meeting with Mr. Canada, the Deputy Garrison
Commander, and the HR Director, the HR Director allegedly stated to Mr.
Canada, “We have selected a younger candidate with more wealth and
depth of experience with the Army who is more compatible with our
leadership and mentoring styles.” 9

Sometime later that same year the HR Director gave Mr. Canada an Annual
Performance Appraisal that rated him “Good.” Mr. Canada believed he deserved a rating
of “Exceptional.”10 At a meeting on December 12, 2012, with the Deputy Garrison
Commander and the HR Director, Mr. Canada expressed his dissatisfaction with the
rating and requested a “Change of Rater.” Also at that meeting, Mr. Canada opined that
the HR Director “appears to be suffering from late-phase alcoholism” and read from a
document he had written about her “History and Symptoms.” Mr. Canada asserts that
the Deputy Garrison Commander then insisted that Mr. Canada give him the document,
and Mr. Canada, indicating that he felt “bullied,” reluctantly gave him the document. 11 In
the document, Mr. Canada made the following accusations about his direct supervisor:
•
•

“She really ‘went crazy’ drinking and partying after her divorce;”

•

she had an extra-marital affair with a former Deputy Garrison Commander;

•

9

she engaged in “heavy drinking and hard partying;”

she “cruises the bars, taverns and lodges every weekend looking for a

Id.

10

Docket 8-2 at 4.

11

Docket 8-2 at 4.

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stranger she can take to her home for a weekend of drinking and sex;”
•

she lied about his work performance; and

•

she created “a sexualized office culture that is hostile towards men,
especially ‘older men.”12

Mr. Canada asserts that instead of receiving a change in rater, the Deputy Garrison
Commander used this documentation to initiate Mr. Canada’s termination. On December
27, 2012, the Deputy Garrison Commander gave Mr. Canada a Notice of Proposed
Removal that asserted two bases for removal: (1) Making Malicious Statements Against
Your Supervisor, and (2) Making False Statements. 13 On January 18, 2013, Mr. Canada
was notified that he was being removed from employment effective January 26, 2013. 14
B.

Procedural Background
Mr. Canada initiated this case on May 7, 2014. Mr. Canada did not participate in

preparing the first initial Scheduling and Planning Conference Report at Docket 19, so the
Court issued an Order of Potential Dismissal for Failure to Prosecute dated October 29,
2014. 15 Mr. Canada then participated in preparing a new Scheduling and Planning Report
filed November 28, 2014. 16 The parties both submitted witness lists. 17 Defendant filed

12

Docket 40-2 at 38–40 (Mr. Canada’s report on the HR Director).

13

Docket 40-2 at 32–34.

14

Docket 40-2 at 49.

15

Docket 20 (Order).

16

Docket 21 (Report).

17

See Dockets 24, 29 (Witness Lists).

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this motion for summary judgment on November 6, 2015. 18
On November 9, 2015, the Court issued a notice regarding the motion for summary
judgment informing Mr. Canada of the deadlines and requirements for response. 19 On
November 13, 2015, Mr. Canada sent the Court a letter that asked the Court to deny the
motion for summary judgment but without presenting any argument. 20

The Court

informed Mr. Canada that letters are not a permissible way to present issues to the Court,
and struck the letter without prejudice to Mr. Canada filing an opposition to the motion for
summary judgment. The order also again referred Mr. Canada to the summary judgment
notice at Docket 38 and indicated that he could request additional time to oppose the
motion for good cause shown. 21 On November 30, 2015, Mr. Canada filed a motion
requesting 60 additional days to respond to the summary judgment motion. 22

On

December 30, 2015, the Court granted Mr. Canada’s request for additional time and set
a January 25, 2016 deadline for Mr. Canada’s filing. But, as indicated above, nothing
further has been filed by either party.
//
//
//

18

Docket 34.

19

Docket 38 (Notice).

20

Docket 43.

21

Docket 44 (Order).

22

Docket 45 (Motion).

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DISCUSSION
A.

Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) directs a court to “grant summary judgment

if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” The burden of showing the absence
of a genuine dispute of material fact lies with the moving party. 23 Genuine disputes of
material fact that preclude summary judgment are “disputes over facts that might affect
the outcome of the suit under the governing law.” 24
When considering a motion for summary judgment, a court must accept as true all
evidence in favor of the non-moving party, and draw “all justifiable inferences” in the nonmoving party’s favor. 25 The Court remains mindful of its duty to liberally construe the
filings of a self-represented party. 26 And a non-moving party’s failure to file an opposition
to a motion for summary judgment does not excuse the moving party’s affirmative duty
under Rule 56 to demonstrate his entitlement to judgment as a matter of law. 27 For that
reason, the Court has assessed Defendant’s motion on the merits.
B.

Hostile Work Environment
Mr. Canada asserts that the Deputy Garrison Commander and the HR Director

23

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

24

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

25

Id. (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)).

26

Hamilton v. United States, 67 F.3d 761, 764 (9th Cir. 1995).

27

See Martinez v. Stanford, 323 F.3d 1178, 1182 (9th Cir. 2003).

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created a “hostile work environment of mismanagement, undermining, and sabotaging”
his work. 28 Construing the Amended Complaint liberally, this may indicate Mr. Canada’s
intent to assert a hostile work environment claim. In order to prevail on such a claim, Mr.
Canada must show that his workplace was permeated with discriminatory intimidation
that was sufficiently severe or pervasive to alter the conditions of his employment and
create an abusive working environment. 29

Mr. Canada must show that the work

environment was both subjectively and objectively hostile, considering the “frequency of
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes with an employee’s
work performance.” 30 Defendant cited Vasquez v. Cty. of Los Angeles, in which the Ninth
Circuit compared a number of hostile work environment cases, and discussed how severe
and pervasive the hostile events must be to support a hostile work environment claim. 31
The Court has reviewed these cases and finds that the handful of events described by
Mr. Canada, even if all proven true, are insufficient to raise a genuine issue of material
fact related to a hostile work environment claim. Therefore, Defendant would be entitled
to summary judgment on the issue if Mr. Canada intended to assert such a claim.
//

28

Docket 8-1 at 1.

29

See Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000).

30

McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1113 (9th Cir. 2004) (citing Nichols v. Azteca
Rest. Enter., 256 F.3d 864, 872 (9th Cir. 2001) (quoting Harris v. Forklift Sys., 510 U.S. 17, 23
(1993))).
31

349 F.3d 634, 643–44 (9th Cir. 2003).

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C.

Retaliation
A federal employee who considers himself a victim of retaliation due to the filing of

an age discrimination complaint may assert a retaliation claim under the federal-sector
provision of the ADEA. 32 That provision states that “[a]ll personnel actions affecting
employees or applicants for employment who are at least 40 years of age . . . shall be
made free from any discrimination based on age.” 33

ADEA claims based on

circumstantial evidence are assessed on summary judgment by the McDonnell Douglas
burden-shifting evidentiary framework. 34
Under the McDonnell Douglas framework, a plaintiff must carry the initial
burden to establish a prima facie case that creates an inference of
discrimination. If the employee establishes a prima facie case, an inference
of discrimination arises and the burden shifts to the employer to produce a
legitimate, nondiscriminatory reason for its employment action. If the
employer does so, the burden shifts back to the employer to prove that the
employer’s explanation is a pretext for discrimination. 35
29 U.S.C. § 633a(a) of the ADEA protects federal employees who complain of age
discrimination from retaliation. 36 In Shelley v. Geren, the Ninth Circuit addressed the
burden of proof at the summary judgment stage for an ADEA claim based on retaliation,
and held that a plaintiff must first establish a prima facie case that he made a complaint

32

Gomez-Perez v. Potter, 553 U.S. 474, 477 (2008).

33

29 U.S.C. § 633a(a).

34

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973); see Shelley v. Geren, 666
F.3d 599, 607–08 (9th Cir. 2012) (the McDonnell Douglas framework continues to apply to
motions for summary judgment in ADEA cases even though the Supreme Court held in Gross v.
FBL Financial Servs., Inc. that the plaintiff must prove at trial that age was the “but for” cause of
the employer’s adverse action. 557 U.S. 167, 177 (2009)).
35

France v. Johnson, 795 F.3d 1170, 1173 (9th Cir. 2015).

36

Gomez-Perez, 553 U.S. at 477.

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of age discrimination and that he suffered an adverse employment action. 37

The

employee must also present evidence “adequate to create an inference that an
employment decision was based on an illegal discriminatory criterion.” 38 The burden of
production then shifts to the employer to articulate a legitimate non-discriminatory reason
for its adverse employment action. If that burden of production is met, then the plaintiff
must demonstrate that there is a genuine issue of material fact as to whether the
employer’s purported reason for its adverse action is a pretext for retaliation. 39 If the case
proceeds to trial, the plaintiff must carry the burden to prove that a complaint of age
discrimination was the “but-for” cause of the adverse employment action. 40 Accordingly,
to survive summary judgment in this case, the evidence taken as a whole and in the light
most favorable to Mr. Canada must be sufficient to permit a rational trier of fact to
conclude that Mr. Canada’s age discrimination EEO complaint in the summer of 2012
was the “but-for” cause of his later termination. 41
Defendant does not dispute that Mr. Canada engaged in protected activity when
he filed the EEO complaint and that he suffered an adverse employment action. But Mr.
Canada has not established a prima facie case of retaliation because the record contains
virtually no evidence to support any inference that Mr. Canada’s removal was based on

37

666 F.3d 599 (9th Cir. 2012).

38

Shelley, 666 F.3d at 608 (formatting and citation omitted).

39

Poland v. Chertoff, 494 F.3d 1174, 1179–80 & n.1 (9th Cir. 2007).

40

Gross, 557 U.S. at 176.

41

See Scheick v. Tecumseh Public Schools, 766 F.3d 523, 531–32 (6th Cir. 2014).

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the filing of the EEO complaint. The only potential causal link in the record is timing: Mr.
Canada initiated EEO proceedings on or about June 26, 2012, and filed a formal
complaint on or about August 3, 2012; he received his notice of proposed removal on
December 27, 2012. But this timing alone is not enough to demonstrate a prima facie
claim of retaliation. And even if it was sufficient for a prima facie showing, Defendant has
produced a legitimate, nondiscriminatory reason for Mr. Canada’s removal, and timing
alone would be insufficient for Mr. Canada to establish that the proffered reason was a
pretext for discrimination. 42 Accordingly, Mr. Canada has not raised a genuine dispute of
material fact regarding retaliation and Defendant is entitled to summary judgment on the
retaliation claim.
D.

Age Discrimination
Mr. Canada also appears to be asserting that he was terminated because of his

age. 43 To establish a prima facie case of age discrimination under the ADEA, a plaintiff
must establish that he or she was (1) at least 40 years old, (2) performing a job
satisfactorily, (3) discharged, and (4) either replaced by a substantially younger employee
with equal or inferior qualification or discharged under circumstances giving rise to an
inference of age discrimination. 44 A difference of ten years or more is presumptively

42

See Sanford v. Landmark Protection, Inc., 495 Fed. Appx. 783, 784 (9th Cir. 2012) (“timing
alone is insufficient to establish pretext”) (citing Stegall v. Citadell Broad. Co., 350 F.3d 1061,
1065–66 (9th Cir. 2004)). See also Fleming v. IASIS Healthcare Corp., --- F. Supp. ----, 2015
WL 9302301, at *9 (D. Ariz. Dec. 22, 2015)
43

Docket 8 at 3.

44

Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1049 (9th Cir. 2012).

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substantial. 45 And “[a]n inference of discrimination can be established by showing the
employer had a continuing need for the employee’s skills and services in that their various
duties were still being performed or by showing that others not in their protected class
were treated more favorably.” 46
Here, Defendant interpreted Mr. Canada’s age discrimination claim as raising a
failure-to-promote claim, and conceded that Mr. Canada “has arguably established a
prima facie case.” 47 But if Mr. Canada wanted to raise a failure-to-promote claim he would
have only needed to check the box labeled “Failure to promote me” that appeared directly
beneath the box he did check (“Termination of my employment”) on the civil rights
complaint form. 48 Regardless, if Mr. Canada intended to raise a failure-to-promote claim
and established a prima facie case of age discrimination in that regard, Defendant would
be entitled to summary judgment on such a claim. Once a prima facie case is made, the
burden would then shift to Defendant to provide a non-discriminatory explanation for its
hiring decision. 49 Defendant has fully met this burden by demonstrating that the Army
engaged in a reasonably objective and thorough assessment of the candidates for the
vacancy and Mr. Canada ranked near the bottom, even when the HR Director’s

45

France, 795 F.3d at 1174.

46

Sheppard, 694 F.3d at 1049–50 (formatting omitted).

47

Docket 34 at 22. To establish an ADEA failure-to-promote case a plaintiff must produce
evidence that he or she was (1) at least forty years old, (2) qualified for the position, (3) denied
the position, and (4) the promotion was given to a substantially younger person. France, 795
F.3d at 1174.

48

Docket 8 at 3.

49

Shelley, 666 F.3d at 609; Sheppard, 694 F.3d at 1049–50.

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assessment of the candidates is removed from the analysis. 50 Defendant also produced
evidence that the person selected for the vacancy had already held a similar position for
two years, had a documented history of excellence, and had the highest-ranked
application as rated by the HR Director and three other evaluators. 51
The articulation of a legitimate non-discriminatory reason shifts the burden back to
Mr. Canada to raise a genuine factual question as to whether the proffered reason is
pretextual. 52 “The plaintiff can prove pretext (1) indirectly, by showing that the employer’s
proffered explanation is unworthy of credence because it is internally inconsistent or
otherwise not believable, or (2) directly, by showing that unlawful discrimination more
likely motivated the employer. All of the evidence—whether direct or indirect—is to be
considered cumulatively.” 53
Defendant’s proffered reason for the hiring decision is not internally inconsistent or
otherwise unbelievable. Defendant cites to Merrick v. Farmers Ins. Group, where the
Ninth Circuit did not find evidence of pretext in an employer’s comment that he chose
another employee for promotion because he was a “bright, intelligent, knowledgeable
young man.”54 Here, the alleged statements about “big boy pants” are insensitive, but
they do not support a finding of age discrimination. Similarly, Mr. Canada recognized that

50

Docket 34 at 7–9, 33–35.

51

See Docket 34 at 7–9.

52

Shelley, 666 F.3d at 609.

53

Id. (internal quotation marks and citation omitted).

54

Docket 34 at 23; 892 F.2d 1434, 1438–39 (9th Cir. 1990).

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the HR Director’s statement about building a matrix to evaluate younger candidates was
“sarcastic,” and Defendant has produced considerable evidence supporting a conclusion
that no such matrix was created or used. 55 The Court finds the matrix statement at most
a stray remark that does not support an inference of age discrimination as a basis for a
failure-to-promote claim.
The two remaining alleged statements are more direct. Mr. Canada asserts that
both the HR Director and the Deputy Garrison Commander seem to have suggested that
being “younger” was a valuable attribute in the person they hired instead of promoting Mr.
Canada because they said, “We have selected a younger candidate,” and “We needed
someone younger.” These statements are similar to the employer’s statement in France
expressing a preference for “young, dynamic agents.” 56 The Ninth Circuit panel found
that that statement “probably goes beyond a stray remark . . . although standing alone
this evidence would be thin support to create a genuine dispute of material fact.” 57 The
Court finds these alleged statements by the HR Director and the Deputy Garrison
Commander of the same class as the statement in France: probably more than stray
remarks, but insufficient to create a genuine dispute of material fact regarding pretext.
Accordingly, Mr. Canada has not identified a genuine issue of material fact as to pretext
and Defendant is entitled to summary judgment on any age discrimination claim that Mr.
Canada intended to assert for a failure to promote.

55

Docket 34 at 7; Docket 34-4.

56

France, 795 F.3d at 1172.

57

Id. at 1173.

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Mr. Canada has also not established a prima facie age discrimination case with
respect to his termination because it appears from the complaint he filed in this action
that his superiors did not think he was performing his job satisfactorily, and neither Mr.
Canada nor the Defendant said anything about his replacement.

While the age

comments allegedly made regarding the Army’s decision not to promote Mr. Canada in
the summer of 2012 may suggest some bias held by the Deputy Garrison Commander
and the HR Director in filling the vacancy, the Court has no information regarding the
Army’s continuing need for Mr. Canada’s skills or services or that anyone outside the
protected class was treated more favorably when Mr. Canada was terminated. Rather, it
appears that Mr. Canada’s termination was based in large part on the scathing report he
wrote about his supervisor.

Accordingly, summary judgment to the Defendant is

appropriate on the age discrimination claim with respect to Mr. Canada’s termination.
Therefore, IT IS ORDERED that the Motion for Summary Judgment at Docket 34
is GRANTED. This action is DISMISSED with prejudice. The Clerk of Court is directed
to enter a judgment for Defendant John McHugh accordingly.
DATED this 27th day of April, 2015 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

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