Ramirez v. Mitel (Delaware) Incorporated et al

Filing 45

ORDER granting 34 Defendant's Motion for Summary Judgment. The Clerk shall enter judgment accordingly and terminate this action. Signed by Judge David G Campbell on 2/28/17.(EJA)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Vanessa Ramirez, Plaintiff, 10 11 ORDER v. 12 No. CV-16-00029-PHX-DGC Mitel (Delaware) Incorporated, et al., 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 Plaintiff Vanessa Ramirez asserts claims against Mitel (Delaware) Inc., Mitel Communications, Inc., Mitel Cloud Services, Inc., and Mitel Business Systems, Inc. (collectively, “Mitel” or “Defendants”), for discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. (“Title VII”), and 42 U.S.C. § 1981. Doc. 1. Mitel moves for summary judgment on all claims. Doc. 34. The motion is fully briefed. Docs. 34, 35, 37, 38, 43, 44. For the reasons that follow, Mitel’s motion will be granted.1 I. Background. Plaintiff began working for Mitel (then known as Inter-Tel Network Services) on May 24, 2004, as a Sales Analyst. Doc. 35, ¶ 1. In 2008, Plaintiff was selected for a job 26 27 1 28 Because oral argument will not aid in the Court’s decision, the parties’ request for oral argument is denied. See Fed. R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). 1 within Mitel as a Sales Administrator. Id., ¶ 2. In February 2009, Brenda Cordova 2 became Plaintiff’s manager. Id., ¶ 3. In March 2013, Plaintiff’s sales administration 3 department, located in Mesa, Arizona, merged with the order administration department, 4 located in Reno, Nevada, and Plaintiff became a Sales/Order Administrator. Id., ¶ 4. The 5 merged team consisted of eight members: Plaintiff, Cordova, Denise Ramos, and Tamara 6 Benton in Mesa, and Barbara Scofield, Danielle Barraza, Melissa Hills, and Allison 7 Dunmire in Reno. Id., ¶¶ 5, 7. Dunmire was the supervisor of the merged team, but 8 Cordova continued as Plaintiff’s manager until June 2014. Id., ¶ 5. Ramos is Plaintiff’s 9 aunt. Id., ¶ 6. 10 Immediately following the merger, Plaintiff and Dunmire “began having issues.” 11 Id., ¶ 8. Plaintiff alleges several instances of disparate treatment by Dunmire against her 12 and her Hispanic co-workers with regard to hours, vacation, pay, overtime, training, and 13 one instance involving a racially charged comment. See Doc. 1, ¶¶ 16-22; Doc. 35-3 at 14 36. In November 2014, Plaintiff applied for a transfer out of Dunmire’s department. 15 Doc. 1, ¶ 26. Her application was denied because Plaintiff’s mother already worked in 16 the department Plaintiff applied for, and, according to Defendants, allowing Plaintiff’s 17 transfer “would violate company policy against relatives working together.” Id.; Doc. 35, 18 ¶¶ 39-42. 2 19 Plaintiff alleges that she reported Dunmire’s disparate treatment on numerous 20 occasions to Human Resources, but nothing was done. Doc. 1, ¶ 27. On December 1, 21 2014, Plaintiff resigned, claiming that she “had no other choice[.]” 22 Doc. 35-15 at 2-3. Soon thereafter, Plaintiff filed a charge of discrimination with the 23 Equal Employment Opportunity Commission (Doc. 35-15), as well as applications for 24 government health/nutrition benefits (Doc. 37 at 6) and unemployment benefits with the 25 Arizona Department of Economic Security (Doc. 35-18 at 2). Upon review of Plaintiff’s Doc. 37 at 6; 26 2 27 28 Mitel’s policy states: “Judgement should be used in the placement of employees who are closely related. It is recommended that closely related employees not be employed in a direct reporting relationship.” Doc. 35-17 at 2. The policy defines “closely related” to include a spouse, child, mother, father, grandparent, grandchild, or sibling, but not an aunt or uncle. Id. -2- 1 application for unemployment benefits, an agency deputy determined that “[Plaintiff] 2 voluntarily left work without good cause in connection with [her] employment[,]” and 3 denied her application. Id. On appeal, an Administrative Law Judge affirmed the 4 deputy’s decision and reasoning. Doc. 35-11. 5 On January 6, 2016, Plaintiff filed this lawsuit. 6 summary judgment on all counts. Doc. 34. 7 II. Defendants now move for Legal Standard. 8 A party seeking summary judgment “bears the initial responsibility of informing 9 the district court of the basis for its motion, and identifying those portions of [the record] 10 which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 11 Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the 12 evidence, viewed in the light most favorable to the nonmoving party, shows “that there is 13 no genuine dispute as to any material fact and the movant is entitled to judgment as a 14 matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is also appropriate against a 15 party who “fails to make a showing sufficient to establish the existence of an element 16 essential to that party’s case, and on which that party will bear the burden of proof at 17 trial.” Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome 18 of the suit will preclude the entry of summary judgment, and the disputed evidence must 19 be “such that a reasonable jury could return a verdict for the nonmoving party.” 20 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 21 III. Analysis. 22 A. 23 Title VII provides that an employer may not “discriminate against any individual 24 with respect to his compensation, terms, conditions, or privileges of employment, 25 because of such individual’s race, color, . . . or national origin.” 42 U.S.C. § 2000e- 26 2(a)(1). “Similarly, § 1981 prohibits [race] discrimination in the ‘benefits, privileges, 27 terms and conditions’ of employment.” Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 28 1103 (9th Cir. 2008) (quoting 42 U.S.C. § 1981(b)). A plaintiff may establish a violation Discrimination. -3- 1 of Title VII or § 1981 by proving that discrimination created a hostile work environment. 2 See, e.g., Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986) (Title VII); Manatt v. 3 Bank of America, NA, 339 F.3d 792, 797 (9th Cir. 2003) (§ 1981). 4 hostile work environment claim, Plaintiff must show that (1) she was subjected to verbal 5 or physical conduct because of her race or national origin, (2) the conduct was 6 unwelcome, and (3) the conduct was sufficiently severe or pervasive to alter the 7 conditions of her employment and create an abusive work environment. Kang v. U. Lim 8 America, Inc., 296 F.3d 810, 817 (9th Cir. 2002) (internal quotations omitted); Gregory v. 9 Widnall, 153 F.3d 1071, 1074 (9th Cir. 1998). To prevail on her 10 Plaintiff was represented by counsel when this case was filed, but her counsel later 11 withdrew. Doc. 20. Plaintiff’s pro se filings in response to Defendant’s motion for 12 summary judgment contain a somewhat rambling and disorganized discussion (Docs. 37, 13 38), but the Court has reviewed them with care to identify Plaintiff’s specific factual 14 assertions and the evidence she provides in support. The Court has identified thirteen 15 factual assertions Plaintiff makes in support of her hostile work environment claim. The 16 Court will summarize each assertion and the evidence, if any, provided to support it. 17 (1) Dunmire “was constantly questioning Plaintiff’s whereabouts and work 18 performance through email, phone calls and with other coworkers on the team, even 19 when Plaintiff was present at work and available via email and desk phone.” Doc. 37 at 2 20 (citing Ex. 8 (email exchange between Plaintiff and Dunmire in which Dunmire states she 21 contacted Plaintiff’s coworkers looking for Plaintiff after failing to reach her by other 22 means)). 23 (2) Dunmire would question Plaintiff’s hours worked during the day, as well as 24 any and all overtime, and would require a detailed email from Plaintiff accounting for her 25 hours and the orders on which she worked. Id. at 3. No evidence is cited in support. 26 (3) Dunmire initiated a policy requiring that overtime be preapproved. Id. (citing 27 Ex. 6 (email from Dunmire to her team stating, “[o]vertime within the company is 28 -4- 1 approved on an as needed basis when necessary and must be pre-approved prior to being 2 worked.”)). 3 (4) Dunmire would deny Plaintiff training or assistance with her workload. Id. 4 (citing Ex. 7 (email chain between Plaintiff and Cordova regarding Plaintiff’s overtime), 5 Ex. 9 (email chain between Plaintiff and Dunmire regarding Plaintiff’s work order 6 status), Ex. 11 (email chain between Plaintiff and Dunmire in which Plaintiff accuses 7 Dunmire of refusing to “have the team help” with her workload)). 8 (5) Dunmire refused to provide instructions that she claimed to have already 9 given, and then would single Plaintiff out for orders completed incorrectly and accuse her 10 of not being able to follow instructions. Id. (citing Ex. 4 (email chain between Plaintiff 11 and Dunmire where Plaintiff asserts the team has not received adequate training), Ex. 5 12 (same)). 13 (6) Dunmire would run reports on the team’s work status, “and the reports for 14 Plaintiff were always incorrect.” Plaintiff and Brenda Cordova would prove otherwise. 15 Id. No evidence is cited in support. 16 (7) Dunmire “would not say ‘hi’ to Plaintiff” and “would look at Plaintiff in a 17 very unprofessional and disrespectful manner.” Id. Dunmire would “sit in a cubicle 18 diagonal from Plaintiff’s cubicle and scoot her chair over and stare at Plaintiff not saying 19 anything.” Id. (citing Ex. 18 (letter from T. Benton in support of Plaintiff’s allegations)). 20 (8) On at least two occasions, Dunmire failed to turn in timesheets for Plaintiff 21 and/or her Hispanic co-workers. Id. at 4. Plaintiff cites Exhibit 27, but no Exhibit 27 is 22 attached to her statement of facts. Doc. 38 at 3. 23 (9) On one occasion, Dunmire made a racially-charged statement. According to 24 Plaintiff, while she and a few co-workers were talking at a training meeting in Mesa, 25 Plaintiff commented that she does not “get red” when tanning, but instead she “get[s] 26 darker.” Id. at 4; see also Doc. 35-3 at 36. In response, Dunmire said “[y]eah, that’s 27 because you are Mexican.” Id. Plaintiff states that Dunmire’s comments “made it clear 28 [that] this is why she was treated differently.” Id.; Doc. 38 at 3. -5- 1 (10) Dunmire would deny requests from Plaintiff for training and would refuse to 2 answer questions, saying that “the more practice Plaintiff got she would understand 3 better.” Doc. 37 at 4. No evidence is cited in support. 4 (11) Following merger of the Reno and Mesa teams, Dunmire “wanted to change 5 Plaintiff’s work hours and remove telecommute[,]” but her attempt “was denied by VP 6 Jon Brinton.” Id. at 5. This change was important to Plaintiff because, under her prior 7 supervisor, she would work from home in the morning on certain days until she dropped 8 her daughter at school. Id. When Plaintiff asked to continue this practice, Dunmire 9 asked Plaintiff “to limit it to one day every 1 to 2 weeks.” Id. In the alternative, Dunmire 10 offered to change Plaintiff’s hours to accommodate Plaintiff. Id. Plaintiff declined to 11 have her hours changed. Id. Soon after, Dunmire sent an email to the entire team with 12 everyone’s new hours. Although Plaintiff’s were not changed, Dunmire had approved 13 one team member from Reno, Danielle Barraza, to work from home every morning 14 because of her son’s school schedule. Id. at 6 (citing Ex. 10 (email from Dunmire to all 15 members of her team detailing scheduling changes)). 16 (12) “Plaintiff was asked to cancel and change scheduled vacation days off[.]” Id. 17 On one occasion, “Dunmire asked Plaintiff to be present on a Tuesday for training[,]” but 18 Dunmire “was not present to work until Wednesday.” Id. (citing Ex. 1 (email between 19 Plaintiff and Cordova where Cordova acknowledges that Plaintiff told Dunmire she 20 would be in the office on a Tuesday for training), Ex. 2 (email between Plaintiff and 21 Cordova regarding the scheduling of Plaintiff’s vacation)). 22 (13) Plaintiff did not receive a pay raise in the spring of 2014. Id. at 6. When 23 Plaintiff was hired, team members were given the opportunity to earn a $250 bonus 24 periodically. 25 bonus would be “taken away permanently or rolled into plaintiff’s pay.” Id. According 26 to Plaintiff, “Todd West [said] this would have no effect on pay raise as the department 27 was going to be re-evaluated and pay would be leveled across the board.” Id. But 28 instead, “Plaintiff’s bonus was rolled into pay and no pay raise or re-evaluation was ever Following the merger, management informed Plaintiff’s team that the -6- 1 done” and “the team in Reno was given a pay increase.” Id. No evidence is cited in 2 support. 3 4 Defendants argue that these assertions do not create a genuine issue of material fact sufficient to survive summary judgment. Doc. 43 at 2, 6. The Court agrees. 5 To establish a hostile work environment, Plaintiff must show that she “was 6 subjected to verbal or physical conduct because of her race or national origin[.]” Kang, 7 296 F.3d at 817. In all but two of her assertions, Plaintiff provides no evidence that 8 Dunmire’s hostility was based on Plaintiff’s race or national origin and no evidence that 9 Dunmire showed similar hostility toward other Hispanics on the team. Specifically, 10 assertions (1) through (7) and (10) through (13) include no evidence to suggest that 11 Dunmire’s actions were based on race or national origin. See Doc. 37 at 3-6. Indeed, in 12 some instances, Plaintiff provides evidence that Dunmire did not mistreat Plaintiff’s 13 Hispanic co-workers in a similar manner. 14 deposition: Dunmire did not scrutinize Ramos’ overtime and never “stared” or made 15 “funny faces” at Ramos); Doc. 37 at 2-3 (Plaintiff was “the only one” required to submit 16 daily detailed order status reports to Dunmire); Doc. 37 at 5 (flexible scheduling granted 17 to co-worker Danielle Barraza). What is more, assertions (2), (6), and (10) are not 18 supported by any evidence, and Plaintiff conceded in her deposition that the alleged 19 change of hours in assertion (11) never occurred. Doc. 35-3 at 46. 20 See Doc. 35-3 at 31, 34-35 (Plaintiff’s In other assertions, Plaintiff makes clear that Dunmire’s hostile conduct was 21 directed toward the entire team, Hispanics and non-Hispanics alike. 22 Plaintiff asserts in item (10) that the Mesa team had not been provided training. And in 23 her deposition, Plaintiff conceded that the changes to the overtime approval process, 24 mentioned in assertion (3), applied to the entire group, not just Plaintiff. Doc. 35-3 at 31 25 (“the entire team received [Dunmire’s] emails” regarding overtime and that “the entire 26 team had to get the overtime preapproved”). When Dunmire’s conduct is directed at the 27 entire team, a reasonable factfinder could not infer that it was motivated by Plaintiff’s 28 race or national origin. -7- For instance, 1 This leaves assertions (8) and (9) as the only two in which discriminatory 2 mistreatment is suggested. In assertion (8), Plaintiff states that Dunmire failed to submit 3 her or her Hispanic co-worker’s timecard on two occasions. Doc. 37 at 4. The first time, 4 Dunmire turned in the time sheets for all team members except Plaintiff and Ramos. Id. 5 The second time, which occurred after Ramos left the company, Plaintiff’s time sheet 6 was the only one not submitted. Id. Plaintiff admitted in her deposition that each 7 instance was promptly remedied and that she received her full pay on time. Doc. 35-3 at 8 48. Plaintiff also concedes that she does not know if Dunmire ever failed to submit the 9 timecard of any other employee. Id. Even if a reasonable jury could infer that these two 10 instances were based on Plaintiff’s race or national origin, Plaintiff has not shown that 11 “the conduct was sufficiently severe or pervasive to alter the conditions of her 12 employment and create an abusive work environment,” particularly when her pay was 13 received on time. Kang, 296 F.3d at 817. 14 In assertion (9), Plaintiff claims that Dunmire made a discriminatory comment to 15 her – “that’s because you are Mexican.” Doc. 35-3 at 6. Dunmire denies making the 16 comment (Doc. 34 at 4, n.3), but the Court must take Plaintiff’s assertion as true for 17 purposes of this summary judgment motion. Even if true, however, the Court cannot 18 conclude that a reasonable factfinder would find this single comment – even when 19 combined with assertion (8) – to be sufficiently severe or pervasive to violate Title VII or 20 § 1981. 21 discriminatory conduct; its severity; whether it is physically threatening or humiliating, or 22 a mere offensive utterance; and whether it unreasonably interferes with an employee’s 23 work performance.’” Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) 24 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)); see also Oncale v. 25 Sundowner Offshore Servs., 523 U.S. 75, 81 (1998); Vasquez v. Cty. of Los Angeles, 349 26 F.3d 634, 642 (9th Cir. 2004). The same analysis applies to race-based claims under 42 27 U.S.C. § 1981. Manatt, 339 F.3d at 797. “The required level of severity or seriousness 28 ‘varies inversely with the pervasiveness or frequency of the conduct.’” Nichols v. Azteca Courts look at all the circumstances, “including ‘the frequency of the -8- 1 Rest. Enters., 256 F.3d 864, 872 (9th Cir. 2001) (quoting Ellison v. Brady, 924 F.2d 872, 2 878 (9th Cir. 1991)). 3 (unless extremely serious) will not amount to discriminatory changes in the terms and 4 conditions of employment.” Id. (quotation marks and citation omitted). “[S]imple teasing, offhand comments, and isolated incidents 5 Failing to turn in time sheets on two occasions and making one offensive comment 6 based on national origin does not constitute the kind of severe and pervasive conduct that 7 violates the federal civil rights laws. See Vasquez, 349 F.3d at 642 (Ninth Circuit found 8 the plaintiff’s claim of continued racial harassment unsupported because it was based 9 only on two racially discriminatory statements made more than six months apart, 10 combined with two second-hand reports of verbal abuse, and two allegedly false 11 performance complaints). To be sure, such conduct is inappropriate, unwarranted, and 12 unacceptable in the modern workplace, but the Court concludes that no reasonable 13 factfinder could find these three incidents so “severe or pervasive [as] to alter the 14 conditions of [Plaintiff’s] employment and create an abusive work environment.” Kang, 15 296 F.3d at 817. And because Plaintiff has failed to provide evidence that Dunmire’s 16 other allegedly hostile actions – also inappropriate in a civilized work setting – were 17 based on Plaintiff’s race or national origin, they do not add to the actionable hostile work 18 environment. 19 In short, Plaintiff has failed to make a showing sufficient to establish the existence 20 of an element essential to her case and on which she will bear the burden of proof at trial. 21 The Court therefore will grant Defendants’ motion for summary judgment on her hostile 22 work environment claim. Celotex, 477 U.S. at 322. 23 B. 24 Title VII prohibits retaliation against an employee for opposing an unlawful 25 employment practice or participating in a Title VII proceeding. 42 U.S.C. § 2000e-3(a). 26 A successful retaliation claim must establish that (1) the employee engaged in a protected 27 activity, (2) the employer took an adverse employment action against the employee, and 28 (3) the employer would not have taken the adverse employment action but for a design to Retaliation. -9- 1 retaliate. Nilsson v. City of Mesa, 503 F.3d 947, 953-54 (9th Cir. 2007); see Univ. of Tex. 2 Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2535 (2013) (clarifying that employee must 3 show “but for” causation). The same elements apply to a retaliation claim under 42 4 U.S.C. § 1981. Ballard v. Portland Gen. Elec. Co., 293 F. App’x 448, 449 (9th Cir. 5 2008). The filing of a charge of discrimination with the EEOC is a protected activity, as 6 is the filing of an internal complaint alleging a Title VII violation. See Bouman v. Block, 7 940 F.2d 1211, 1228 (9th Cir. 1991); EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 8 963 (9th Cir. 2009). 9 Defendants concede that Plaintiff engaged in a protected activity “when she 10 reported what she perceived to be discriminatory treatment of her by Dunmire.” Doc. 34 11 at 12. Defendants argue, however, that Plaintiff has not shown that she was subjected to 12 any adverse employment action as a result of her protected activities, or that there is a 13 causal link between protected activity and any adverse employment action. Id. at 12-13. 14 1. Adverse Employment Action. 15 Title VII’s anti-retaliation provision protects against “materially adverse” 16 employment actions – actions that might dissuade a reasonable worker from making or 17 supporting a charge of discrimination – but not against “petty slights or minor 18 annoyances that often take place at work and that all employees experience.” Burlington 19 N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). The Court’s role at the summary 20 judgment stage is limited to determining whether there is evidence in the record that 21 would support a reasonable jury in finding that the action complained of was materially 22 adverse. 23 summary judgment. See, e.g., Johnson v. Fed. Express Corp., No. CV-14-02428-PHX- 24 DGC, 2016 WL 1593811, at *4 (D. Ariz. Apr. 21, 2016) (citing Sillars v. Nevada, 385 25 F. App’x 669, 671 (9th Cir. 2010) (affirming grant of summary judgment because 26 employee “presented no evidence that the position to which she was moved differed in 27 any material way from the position she occupied prior to her complaints”)). 28 determining whether a reasonable jury could find material adversity, the Court must Where the evidence would permit no such finding, the Court may grant - 10 - In 1 consider the context in which the action occurred. Because “[t]he real social impact of 2 workplace behavior often depends on a constellation of surrounding circumstances, 3 expectations, and relationships . . . an act that would be immaterial in some situations is 4 material in others.” White, 548 U.S. at 69 (citations and quotation marks omitted). 5 Plaintiff asserts that Defendants took an adverse employment action by denying 6 her November 2014 transfer request. Doc. 37 at 5; see also Doc. 1, ¶¶ 24-27, 31-37. 7 Defendants argue that the denial did not constitute an adverse employment action. 8 Doc. 34 at 13-14. 9 The Ninth Circuit has stated that lateral transfers may be considered adverse 10 employment actions. See Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000) (“The 11 EEOC test covers lateral transfers, unfavorable job references, and changes in work 12 schedules. These actions are all reasonably likely to deter employees from engaging in 13 protected activity.”). Defendants argue that no Ninth Circuit court has “specifically held 14 that the refusal to grant a lateral transfer request constitutes an adverse employment 15 action.” Doc. 34 at 13. Defendants further argue that for an employer’s denial of a 16 requested transfer to be an adverse employment action, it must either be between a non- 17 supervisory and supervisory position or must involve a change in the employee’s 18 compensation. Id. (citing Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1494-95 (9th 19 Cir. 1995)). 20 Defendants’ reliance on Odima is misplaced. In Odima, the Ninth Circuit 21 considered whether an employer’s denial of an employee’s three transfer requests could 22 be considered an adverse employment action. 53 F.3d at 1494. The court suggested that 23 the employee needed to show he was denied a promotion or a change in the form of his 24 compensation. Id. But since Odima was decided in 1995, the Ninth Circuit has adopted 25 the EEOC test for adverse employer actions, which expressly covers lateral transfers, not 26 just promotions. See Ray, 217 F.3d at 1243 (“Because the EEOC standard is consistent 27 with our prior case law and effectuates the language and purpose of Title VII, we adopt it, 28 and hold that an action is cognizable as an adverse employment action if it is reasonably - 11 - 1 likely to deter employees from engaging in protected activity.”). In this instance, a 2 reasonable jury could find that Plaintiff would be dissuaded from engaging in a protected 3 act if she knew Defendants would deny her request for a lateral transfer. Plaintiff has 4 alleged a materially adverse employment action. 5 2. Causation. 6 Plaintiff must also show a causal link between her protected activity and 7 Defendants’ denial of her November 2014 transfer request. The Supreme Court has held 8 that Title VII retaliation claims “must be proved according to traditional principles of 9 but-for causation.” Nassar, 133 S.Ct. at 2533. To establish causation, an employee must 10 provide evidence, either direct or circumstantial, that the individuals responsible for the 11 adverse employment action knew about the protected activity and intended to retaliate 12 because of it. See Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 13 (9th Cir. 2003) (“Raad must present evidence from which a reasonable trier of fact could 14 conclude that the school principals who refused to hire her were aware that she had 15 engaged in protected activity.”); Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 16 1112-15 (9th Cir. 2011) (employee must provide “direct or circumstantial evidence of 17 discriminatory intent” on part of employer). 18 “[I]n some cases, causation can be inferred from timing alone where an adverse 19 employment action follows on the heels of protected activity.” Villiarimo v. Aloha Island 20 Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002). The Ninth Circuit has “made clear that a 21 specified time period cannot be a mechanically applied criterion, and ha[s] cautioned 22 against analyzing temporal proximity without regard to its factual setting.” Fazeli v. 23 Bank of Am., NA, 525 F. App’x 570, 571 (9th Cir. 2013) (citations and internal quotation 24 marks omitted). Nonetheless, courts generally have “required temporal proximity of less 25 than three months between the protected activity and the adverse employment action for 26 the employee to establish causation based on timing alone.” Mahoe v. Operating Eng’rs 27 Local Union No. 3, No. CIV. 13-00186 HG-BMK, 2014 WL 6685812, at *8 (D. Haw. 28 Nov. 25, 2014) (collecting cases). This comports with Supreme Court precedent, which - 12 - 1 holds that the temporal proximity between the protected action and the adverse 2 employment action must be “very close” to support an inference of causation, and that 3 “[a]ction taken . . . 20 months later suggests, by itself, no causality at all.” Clark Cty. 4 Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (citations omitted). 5 Courts apply the McDonnell Douglas burden-shifting framework to determine 6 whether an employee can establish causation. Steiner v. Showboat Operating Co., 25 7 F.3d 1459, 1464-65 (9th Cir. 1994). Under this framework, an employee must first make 8 a prima facie showing of causation. Id. The burden then shifts to the employer to 9 advance “legitimate, non-retaliatory reasons for any adverse actions taken” against the 10 employee. Id. “This burden is one of production, not persuasion; it can involve no 11 credibility assessment.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 12 (2000) (citation and internal quotation marks omitted). 13 evidence suggesting a non-retaliatory reason for its action, the employee must show that 14 the proffered reasons are pretextual. Id. An employee may establish pretext “either 15 directly by persuading the court that a discriminatory reason more likely motivated the 16 employer or indirectly by showing that the employer’s proffered explanation is unworthy 17 of credence.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). “To 18 show pretext using circumstantial evidence, a plaintiff must put forward specific and 19 substantial evidence challenging the credibility of the employer’s motive.” Vasquez, 349 20 F.3d at 642. If the employer produces 21 Plaintiff alleges in her complaint that, in June 2014, she reported to “Human 22 Resources that she felt she was being discriminated against by Dunmire, and that non- 23 Hispanic, namely Caucasian employees were being treated more favorably.” Doc. 1, 24 ¶ 27. The record does not contain any other date for Plaintiff’s protected activity, and in 25 her response brief, Plaintiff states only that “[a]fter several complaints to HR Plaintiff 26 asked to be transferred to NetSupport as a Sales Analyist.” Doc. 37 at 6. Plaintiff’s 27 complaint alleges that she was denied a transfer to another department in late November 28 2014. Doc. 1, ¶¶ 25-26. - 13 - 1 Plaintiff provides no evidence to show a causal link between her protected acts 2 and denial of her transfer request. Plaintiff does not allege that Dunmire denied the 3 transfer request. Id. Nor does she argue that Dunmire instructed or persuaded others to 4 do so, or that the persons who denied the request knew of Plaintiff’s protected activity. 5 Doc. 37 at 5. And even if the Court were to take the unsupported November date as the 6 date when the transfer request was denied, the Court cannot conclude that a five-month 7 period between Plaintiff’s protected activity and denial of the transfer suffices to establish 8 the needed link. The Court accordingly finds that Defendants are entitled to summary 9 judgment on Plaintiff’s retaliation claim. 10 Plaintiff’s claim would also fail because Defendants provide a legitimate, non- 11 retaliatory business reason for refusing to approve the transfer: company policy states that 12 “closely related employees not be employed in a direct reporting relationship[,]” and 13 evidence shows that the transfer would result in Plaintiff’s mother having 14 “responsibilities for overseeing the hiring and productivity of Plaintiff, and for assigning 15 tasks for Plaintiff.” Doc. 34 at 15 & n.11. Plaintiff argues that this explanation is 16 pretextual. Doc. 37 at 5. She states that she worked with her mother before at the 17 NetSupport department, as well as her aunt and brother, but provides no evidence to 18 support this assertion. Id. She further asserts that “there are several employees who are 19 currently employed with Mitel who are closely related and work in the same department,” 20 but again provides no supporting evidence. Id. Plaintiff does not provide a single piece 21 of evidence to support her pretext claim, much less the “specific and substantial evidence 22 challenging the credibility of the employer’s motive” required to be successful. Vasquez, 23 349 F.3d at 642. 24 Based on evidence in the record, no reasonable jury could find that Defendants 25 engaged in retaliation against Plaintiff because of her protected act. Accordingly, the 26 Court will grant Defendants’ motion for summary judgment. 27 C. 28 Finally, Plaintiff appears to be asserting a claim for constructive discharge. Constructive Discharge. - 14 - 1 Docs. 1, 37. The Court concludes, however, that this claim cannot survive summary 2 judgment. Plaintiff alleges that she was forced to quit working because she could no 3 longer take “[t]he stress and constant harassment from [Dunmire].” Doc. 37 at 6. To the 4 extent this constructive discharge is alleged to have resulted from a hostile work 5 environment, it fails for the reasons set forth above – Plaintiff has not provided evidence 6 sufficient to establish a hostile work environment claim. And to the extent Plaintiff 7 asserts constructive discharge as part of her retaliation claim, it fails because Plaintiff 8 does not allege or show that the constructive discharge occurred because of her protected 9 activity. Rather, Plaintiff alleges that it occurred because of Dunmire’s mistreatment. 10 11 12 IT IS ORDERED that Defendants’ motion for summary judgment (Doc. 34) is granted. The Clerk shall enter judgment accordingly and terminate this action. Dated this 28th day of February, 2017. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 15 -

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?