La Mar v. Arizona Department of Economic Security

Filing 40

ORDER - IT IS HEREBY ORDERED granting Defendant's 29 Motion for Summary Judgment. FURTHER ORDERED that the Clerk of the Court shall terminate this action. Signed by Judge G Murray Snow on 9/25/08.(SAT)

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WO

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) Department of Economic Security,) Division of Child Support Enforcement,) Systems Automation and Administration,) ) ) Defendant. ) ) Valerie La Mar,

No. CV06-2550-PHX-GMS ORDER

Pending before the Court is the Motion for Reconsideration or in the Alternative for Summary Judgment of Defendant, Arizona Department of Economic Security. (Dkt. # 29.) Plaintiff, Valerie La Mar, filed a response. (Dkt. # 31.) Defendant replied. (Dkt. # 38.) For the reasons set forth below, the Court grants Defendant's motion for summary judgment. BACKGROUND I. Facts Plaintiff, an African American female in her early forties, has been employed by Defendant since January 30, 1995. Plaintiff has been employed as a Management Analyst II ("MA II") since April 15, 1998. She alleges that she received inferior training compared to people of other races, and was therefore demoted on June 6, 2000. Plaintiff then filed an Equal Employment Opportunity Commission ("EEOC") complaint, and was subsequently reinstated in her former MA II position.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II.

Plaintiff alleges that since then she has been the victim of retaliation, and that she has continued to be the subject of race-based discrimination by her employer. She claims that she has continued to receive inferior training, and that she has not been given the same workload as her peers have been given. She alleges she has had to implement projects with inferior resources compared to those of her coworkers. Specifically, she alleges that she has not received an equal or fair opportunity to work with "expert programmers" that would allow her to work on more complex cases and expand her skills. In May of 2005, Plaintiff applied for a promotion to become a Management Analyst III ("MA III") and did not receive the position. She claims that she was more qualified than the non-African American candidates who did receive the jobs. All applicants were interviewed by a panel of three interviewers. Plaintiff claims that one of the interviewers on the panel was changed for her interview, thus subjecting her to discriminatory treatment. Additionally, Plaintiff claims that she received a late performance review. She was also transferred to a different unit in order to be supervised by someone with whom it was known that she did not get along. Plaintiff asserts that this supervisor imposed a rigorous deadline schedule on Plaintiff to which no other person in Plaintiff's position had been subjected. Plaintiff filed an additional EEOC complaint in 2005 alleging discrimination and retaliation in Defendant's promotion decisions. She noted in the complaint that no African Americans were currently employed as MA IIIs within the Department. In May of 2006, Defendant hired an African American female to fill an MA III position. Plaintiff claims that this was done in response to her complaint in order to make it less credible. Finally, Plaintiff also alleges that she inquired about open MA III positions in June of 2006, and was told that there were none available. Soon thereafter, another employee was promoted to MA III.

Procedural History -2-

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On October 16, 2007, Defendant filed a motion for summary judgment arguing that all Plaintiff's claims should be dismissed. (Dkt. # 16.) In its Order, the Court construed1 Plaintiff's Complaint as alleging eight separate actions taken by the Defendant which were discriminatory: (1) plaintiff did not receive the same training, workload, and resources as her peers (Compl. ¶¶ 5-7.); (2) in May, 2005, Plaintiff was passed over for a promotion despite her allegedly superior qualifications (Id. at ¶ 8.); (3) when Plaintiff interviewed for the position, Defendant changed the interviewers on the interview panel thereby discriminating against Plaintiff (Id. at ¶ 8); (4) Plaintiff received an overdue performance review (Id. at ¶ 10.); (5) Defendant placed Plaintiff under the supervision of someone with whom she did not get along (Id. at ¶ 11.); (6) Plaintiff was subjected to a more rigorous deadline schedule than her peers (Id.); (7) Defendant hired a black woman to fill a position for which Plaintiff had applied, with the purpose of disproving Plaintiff's discrimination claims (Id. at ¶ 12.); and (8) Plaintiff inquired about an open MA III position, was told that there were none available, and soon thereafter a different employee was promoted to an MA III position (Id. at ¶ 13.). (Dkt. # 26.) On July11, 2008, the Court granted summary judgment on claims 2-5 and 7-8. The Court declined to grant summary judgment on claims 1 and 6, as the Defendant had not addressed these allegations in its motion. (Id.) Defendant explains its failure to address claims 1 and 6 as being a result of variance between its interpretation and the Court's interpretation of Plaintiff's Complaint.2 Because the Court was required to, and did, interpret Plaintiff's complaint as broadly as possible, the Court identified some possible claims not

In her complaint, pro per Plaintiff, La Mar, failed to enumerate her claims against Defendant. Instead, Plaintiff's allegations of wrongdoing were described in narrative fashion in paragraphs 5-17. This required the Court to construe the allegations asserted against Defendant in the Complaint. Specifically, the Court construed the Complaint as stating a separate allegation regarding disparate treatment in the context of training, work projects, and access to programers ­ claim 1. Defendant construed these same allegations as part of Plaintiff's failure to promote claim ­ claim 2. (Dkt. # 29, at 1.) Similarly, the Court construed the Complaint as stating a separate allegation in the context of the rigorous deadline schedule ­ claim 6. Defendant construed the rigorous deadline schedule as part of claim 5. (Id. at 2.) -32

1

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accounted for in Defendant's first motion for summary judgment. On July 25, 2008, Defendant filed a motion for reconsideration or in the alternative for summary judgement. (Dkt. # 29.) Due to the extenuating circumstances present, the Court will address

Defendant's second motion for summary judgment. DISCUSSION Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." Fed. R. Civ. P. 56(c). Thus, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Initially, the movant bears the burden of pointing out to the Court the basis for the motion and the elements of the causes of action upon which the non-movant will be unable to establish a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmovant to establish the existence of material fact. Id. The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts" by "com[ing] forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e)). A dispute about a fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant's bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Id. at 247-48. However, in the summary judgment context, the Court construes all disputed facts in the light most favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004). Summary judgment motions on Title VII claims are typically evaluated by the burden shifting scheme set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). -4-

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Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1105 (9th Cir. 2008); Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008). Under McDonnell Douglas, the initial burden is on the plaintiff to establish a prima facie case of discrimination or retaliation.3 Surrell, 518 F.3d at 1106 (citing Metoyer v. Chassman, 504 F.3d 919, 931 n.6 (9th Cir. 2007)). If a plaintiff establishes a prima facie case, the burden then shifts to the defendant to show a legitimate, non-discriminatory reason for the conduct. Id. (citing Metoyer, 504 F.3d at 931 n.6). If the defendant does this, the burden reverts to the plaintiff to show that the reasons offered by the defendant are pretextual. Id. (citing Dominguez-Currey v. Nev. Transp. Dep't, 424 F.3d 1027, 1037 (9th Cir. 2005)). If the employer sufficiently articulates a nondiscriminatory reason, the plaintiff "must produce evidence in addition to that which was sufficient for her prima facie case in order to rebut the [employer's] showing." Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998) (citing Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994)). "[T]he plaintiff must show that the articulated reason is pretextual `either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.'" Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002) (quoting Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1124 (9th Cir. 2000)); see Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1194 (9th Cir. 2003); Texas Dept. Of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). A.
3

Allegation 1 - Disparate Training, Workload, Resources

In order to establish a prima facie case of ongoing race discrimination, the Plaintiff must show that: (1) she is a member of a protected class; (2) she performed according to her employer's legitimate expectations; (3) she suffered an adverse employment action; and (4) other employees with similar qualifications were treated more favorably. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998) (internal citations omitted). "In order to prevail on a claim of unlawful retaliation, a plaintiff must establish (1) that he engaged in a protected activity, (2) that he suffered an adverse employment decision, and (3) that there was a causal link between plaintiff's activity and the employment decision." Lyons v. England, 307 F.3d 1092, 1118 (9th Cir. 2002). -5-

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Plaintiff alleges that her disparate treatment regarding training opportunities, workload, and access to expert programmers was an ongoing set of occurrences throughout her employment experience. In response, Defendant establishes the following facts

explaining Defendants conduct: (1) management analysts, like Plaintiff, who began working with the Systems and Automation Administration group prior to 2004 did not receive formal training, but rather were expected to learn on-the-job (Dkt. # 30, ¶ 39); (2) project assignment depended on a multitude of factors including the management analyst's availability, the analyst's expertise in a particular area, the analyst's track record, and the analyst's ability to complete a project with little or no supervision or guidance (Id. at ¶¶ 40, 42); (3) administrators within the Systems and Automation Administration do not unilaterally assign projects; rather, this is a function of the Division of Technology Services (Id. at ¶ 41); (4) Plaintiff has worked on more projects with "expert programers" than some Caucasian and Hispanic analysts (Id. at ¶ 50); and (5) Plaintiff was not assigned large projects because, based on observation and evaluations, Plaintiff is not qualified to be assigned such jobs (Id. at ¶¶ 40, 42). Based on this evidence, Defendant has established legitimate, non-discriminatory reasons for the lack of formal training given to Plaintiff and for assignment distribution methodology. Thus, Plaintiff must now show that these reasons are pretextual. Plaintiff provides no direct evidence showing that Defendant's conduct was based on a discriminatory motive. See Godwin, 150 F.3d at 1221 ("When the plaintiff offers direct evidence of discriminatory motive, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial.").4 In order to show pretext by indirect evidence,5

Direct evidence is evidence which, if believed, proves discriminatory motive without inference or presumption. See Godwin, 150 F.3d at 1221. To establish pretext, the plaintiff may also offer "circumstantial evidence that tends to show that the employer's proffered motives were not the actual motives because they are inconsistent or otherwise not believable." Godwin, 150 F.3d at 1222. Indeed, "once the employer's justification has been eliminated, discrimination may well be the most likely -65

4

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"such evidence must be both specific and substantial." Villiarimo, 281 F.3d at 1062 (citing Godwin, 150 F.3d at 1222). In her Response, Plaintiff does not cite to any evidence indicating that Defendant's proffered reasons are pretextual. Plaintiff initiates her argument by pointing to the fact that on-the-job training was acquired by working with expert programmers and that certain individuals (Sierra Rose, Leisa Bell, John Asher, Lisa Faison and Teresa Coffman) worked with expert programmers more often than Plaintiff. Even if this is true, the preferential assignments given to these individuals do not cast doubt on Defendant's proffered nondiscriminatory explanation for how assignments are distributed.6 Indeed, Plaintiff does not dispute the facts established by Defendant showing Plaintiff was assigned to work with experts more frequently than some Caucasian and Hispanic colleagues, and two AfricanAmerican colleagues were assigned to work with expert programmers more frequently than many of the Caucasian or Hispanic analysts. Plaintiff's attempt at casting doubt on Defendant's proffered explanation is limited to simply arguing that if "race was not a significant factor, then what was the reason for the disparate training?" (Dkt. # 38, at 2.) This is not the specific and substantial evidence required to show pretext, as mere conjecture

alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision." Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 134 (2002). Thus, "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Id. at 148; see Raad, 323 F.3d at 1194 ("In Reeves[,] . . . the Court held that the factfinder may infer `the ultimate fact of intentional discrimination' without additional proof once the plaintiff has made out her prima facie case if the factfinder rejects the employer's proffered nondiscriminatory reasons as unbelievable."); Chuang, 225 F.3d at 1127. Notably, in the Complaint after alleging discrimination on the basis of race with respect to training/assignment distribution, Plaintiff states, "Plaintiff asked for big projects but did not receive them as the Defendant assigned bigger projects to their friends and close associates." (Dkt. # 1, at ¶ 7.) Even in her Complaint, Plaintiff asserts that training/assignment distribution was done on the basis of friendship and not on the basis of race. -76

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on the part of Plaintiff is not enough. Villiarimo, 281 F.3d at 1062 (citing Godwin, 150 F.3d at 1222). Ironically, Plaintiff also seeks to rebut the assertion that she is not qualified to be assigned "big jobs" by setting forth a number of "complex" assignments that Plaintiff has completed. (Dkt. # 38, at 3.) If this is indeed true, this evidence appears to contradict the very claim of disparate treatment in assignment distribution. In sum, the evidence Plaintiff cites simply does not rebut the reasoning set forth by Defendant as to how assignments are distributed to the analysts. If anything, Plaintiff's arguments and evidence show only her feelings about her employer's motivations while nothing in them suggest that her employer's explanation of the events is in any way untrue. Therefore, summary judgment is granted as to this allegation. B. Allegation 6 - More Rigorous Deadline Schedule

Plaintiff claims that she was subjected to a more rigorous deadline schedule than her peers based on her race. Defendant's explanation is based on the following facts: (1) management analysts are often assigned projects with deadlines that are simultaneous or overlap (Dkt. # 30, ¶ 53); (2) three other members of the Rose team besides Plaintiff had back-to-back or simultaneous deadlines during the period of time Plaintiff was supervised by Sierra Rose (Id. at ¶ 54); and (3) back-to-back or simultaneous deadlines are not unusual as shown by deadlines of other analysts assigned to other supervisors (Id. at ¶ 55). Based on this evidence, Defendant has established legitimate, non-discriminatory reasons for the rigorous deadline schedule to which Plaintiff was subject while working under Sierra Rose. Thus, Plaintiff must now show that these reasons are pretextual. Plaintiff, however, makes no attempt to refute any of the facts or reasoning cited by Defendants. Plaintiff merely attempts to rehash issues foreclosed when the Court granted summary judgment on claim 5. Therefore, because Plaintiff fails to cite any specific and substantial evidence to show pretext, the Court grants summary judgment as to this allegation. CONCLUSION -8-

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IT IS HEREBY ORDERED granting Defendant's Motion for Summary Judgment (Doc. # 29). IT IS FURTHER ORDERED that the Clerk of the Court shall terminate this action. DATED this 25th day of September, 2008.

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